author: JUSTICE LEAPHART JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF KENNETH D. STONE, Petitioner and Appellant, and BARBARA JEAN STONE, Respondent and Respondent.
    No. 94-479.
    Submitted on Briefs June 8, 1995.
    Decided December 20, 1995.
    52 St.Rep. 1256. 908 P.2d 670.
    274 Mont. 331.

      For Appellant: Joan E. Cook; Miller & Cook, Great Falls.
    For Respondent: K. Dale Schwanke; Jardine, Stephenson, Blewett & Weaver, Great Falls.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Kenneth Stone appeals from the September 21, 1994, order of the Eighth Judicial District Court, Cascade County, denying his motion to modify his maintenance obligation. We affirm.

We restate the issues raised on appeal as follows:

1. Did the District Court violate the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408, in adopting the maintenance provision in the parties’ settlement agreement in its award of maintenance to Barbara?

2. Did the District Court err in authorizing maintenance which may potentially amount to more than 50 percent of Kenneth’s disposable income, as calculated under 10 U.S.C. § 1408?

Kenneth Stone (Kenneth) and Barbara Stone (Barbara) were married in 1959 and divorced in 1985. The District Court entered its Findings of Fact, Conclusions of Law and Decree of Dissolution on March 28,1985, reserving the maintenance and property settlement issues. In April of 1985, Kenneth and Barbara entered into a property settlement agreement, pursuant to § 40-4-201, MCA. The agreement divided the marital estate and provided that Kenneth would pay maintenance to Barbara. Specifically, the maintenance provision stated that “Husband shall pay to Wife one-half of his gross retirement benefits through the Clerk of the Court, Cascade County, State of Montana. Said sum shall be paid by the fifth (5th) day of each month and shall be increased as the cost of living increases are received.” In an attempt to clarify this maintenance provision, an addendum was added, which read in part:

The term “retirement benefits” for this purpose includes the gross payments receivable by Husband from the United States Air Force and from the Veterans’ Administration in any combination; the present system reflects a gross retirement benefit, less that portion which is paid by the Veterans’ Administration, with the balance being payable through the U.S. Air Force Retirement Center. Husband agrees that the Court may make and enter an Order obligating Husband to make the assignment agreed upon herein pursuant to Section 40-4-207, Montana Codes Annotated. The provision herein for division of these gross retirement benefits shall not be modifiable. [Emphasis added.]

Both parties intended the term “retirement benefits” to include retirement pay and Veterans’ Administration disability pay, and the purpose of the addendum was to clarify that disability pay was to be included. When Kenneth and Barbara signed the property settlement agreement, and the addendum, both were represented by counsel.

In 1993, after paying maintenance as required under the agreement for more than eight years, Kenneth moved the court to modify the amount of maintenance. Kenneth argued the maintenance provision and addendum violated federal law. Specifically, he asserted that the inclusion of disability pay in the amount to be paid as maintenance was contrary to the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408. The District Court denied Kenneth’s motion to modify the maintenance award noting that Kenneth and Barbara, having been fully advised by counsel, entered into a voluntary settlement agreement which included the disputed maintenance provision. Further, the District Court determined that Kenneth was estopped from contesting the amount of maintenance he had agreed to pay. Kenneth appeals from the District Court’s determination.

1. Did the District Court violate the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408, in adopting the maintenance provision in the parties’ settlement agreement in its award of maintenance to Barbara?

Kenneth alleges that the maintenance provision in the settlement agreement treats his veterans’ disability benefits as marital property and divides the benefits in violation of the Uniformed Services Former Spouses’ Protection Act (the Act) and the United States Supreme Court’s interpretation of the Act in Mansell v. Mansell (1989), 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675. In Mansell, the Supreme Court held that “under the Act’s plain and precise language, state courts have been granted the authority to treat disposable retirement pay as community property; they have not been granted the authority to treat total retirement pay as community property.” Mansell, 490 U.S. at 589, 109 S.Ct. at 2028.

Here, however, we note that Kenneth and Barbara entered into a voluntary settlement agreement, pursuant to § 40-4-201, MCA, in which, separate from the division of the marital property, they agreed to divide the total amount of Kenneth’s retirement pay as maintenance. See Marriage of Blair (1995), 271 Mont. 196, 894 P.2d 958, 964 (Leaphart, J., concurring). Section 40-4-201(2), MCA, provides:

In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except those providing for the support, custody, and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.

(5) Terms of the agreement set forth in the decree are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms. [Emphasis added.]

A separation agreement is binding on the court unless it provides for the support, custody, or visitation of children or unless the court finds the agreement to be unconscionable. Section 40-4-201(2), MCA. Here, the custody, support, and visitation of children were not at issue, nor did the court find the agreement to be unconscionable. Thus, the District Court was required by law to abide by the maintenance agreement of the parties. Further, we note that at the discretion of the parties the terms of the separation agreement can be set forth in the decree, or the decree can merely identify that a separation agreement exists and that its terms are not unconscionable. Section 40-4-201(4), MCA.

Although Kenneth’s and Barbara’s separation agreement was incorporated into the decree, it was not required to be incorporated. Thus, contrary to the dissent’s suggestion that the court, once it incorporates the agreement into the decree “has, itself, divided the disability benefits,” the court has not done the “dividing” of benefits, rather, the parties have. First of all, there is no requirement that the terms of the agreement be incorporated into the decree; that decision is left to the discretion of the parties. Secondly, even if the parties elect to have the terms incorporated into the decree, the court has no discretion to engage in any sua sponte division of assets in the context of maintenance or property distribution. Rather, the court, absent a finding of tmconsdonability, has no choice but to honor the parties’ agreement. Section 40-4-201(2), MCA. That the terms of the maintenance agreement are binding independently from the decree is illustrated by the fact that under Montana law, even if the parties choose not to have the terms incorporated into the decree, the terms are, nonetheless, enforceable as contract terms. Section 40-4-201(5), MCA; see also Marriage of Lorge (1984), 207 Mont. 423, 429, 675 P.2d 115, 117 (stating that where the terms of an agreement are not set forth in the decree the agreement retains the status of a private contract). In addition, if the parties choose to incorporate the agreement into the decree the terms of the agreement are enforceable by contempt as well as in contract. Section 40-4-201(5), MCA.

In the instant case, the agreement and the addendum clearly intended to include Kenneth’s Veterans’ Administration disability payments within the maintenance award. This voluntary contractual agreement between the parties does not purport to assign Kenneth’s veterans’ disability benefits to Barbara. In any event, Kenneth and Barbara had the power to enter into the settlement agreement regardless of the Act. In confronting this issue, the Idaho Court of Appeals observed that:

Richard additionally asserts that the [court’s order] is erroneous on the basis that it essentially divides his disability pay, an item of his separate property which is not divisible. See Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989). [Citation omitted.] This argument is misplaced. The parties negotiated for and mutually agreed to a division of the military retired pay which granted Elisabet a specific monthly sum. ... The two supplemental orders issued by the court did not alter this agreed-to division of the asset, but served simply to enforce it.

McHugh v. McHugh (Idaho Ct. App. 1993), 861 P.2d 113, 115.

In Mansell, the parties also had entered into a property settlement agreement. Mansell, 490 U.S. at 585-86, 109 S.Ct. a 2026-27. However, the Supreme Court’s analysis relies on the preemption of California’s community property law by the Act. While the Act prohibits state courts and state legislatures from dividing veterans’ disability benefits, neither the Act nor the Supreme Court’s opinion in Mansell clearly preempt the parties’ ability to contract.

There is no language in the Act, or in Mansell, which leads to the inevitable conclusion that the individual’s freedom to contract has been suspended. Even though there was a property settlement agreement in Mansell, the Supreme Court did not hold that the parties were not free to contract. Rather, the Court held that state courts “have not been granted the authority to treat total retirement pay as community property.” Mansell, 490 U.S. at 589, 109 S.Ct. at 2029. The Supreme Court’s conclusion that a state court’s division of veterans’ disability pay, pursuant to community property law, is preempted by the Act is supported by the Court’s analysis. The Court, however, did not analyze the Act in the context of contract law as opposed to preemption law. Thus, the validity or invalidity of that agreement was not the basis for the Court’s holding.

The maintenance provision at issue in Kenneth’s and Barbara’s separation agreement, which is separate from the property division portion of the agreement, provides that “[hjusband shall pay to Wife one-half of his gross retirement benefits.” At the time of the agreement, both parties agreed that this would include his veterans’ disability pay. In addition, the maintenance provision regarding Kenneth’s gross retirement benefits clearly states that it “shall not be modifiable.” The District Court merely required Kenneth to do that which he, with the knowledge of the law and advice of counsel, had agreed to do. The Act may insulate disability benefits from distribution by the court or through community property law. However, that preemption does not mean that the veteran is stripped of his right to enter into a contract of his own free will. Kenneth did exactly that and should be required to honor that agreement.

2. Did the District Court err in authorizing maintenance which may potentially amount to more than 50 percent of Kenneth’s disposable income, as calculated under 10 U.S.C. § 1408?

Kenneth next contends that an award of maintenance that potentially exceeds 50 percent of his disposable income violates the Act. Kenneth misreads the federal statute.

The section of the Act referred to by Kenneth is 10 U.S.C. § 1408(e)(1) which states that “[t]he total amount of the disposable retired or retainer pay of a member payable under subsection (d) may not exceed 50 percent of such disposable retired or retainer pay.” (Emphasis added.) This referenced subsection, 10 U.S.C. § 1408(d), allows the garnishment of a service-person’s pay in order to satisfy a child support, maintenance, or property settlement judgment. Read together, these sections state that the federal government will not garnish more than 50 percent of a service-person’s disposable retirement pay, even if the judgment outstanding exceeds that amount. Nothing in the Act prohibits a state court from approving a maintenance or custody award in any amount. Accordingly, we hold that the District Court did not err in upholding the maintenance provision in the parties’ settlement agreement.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY and HUNT concur.

JUSTICE ERDMANN did not participate.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

In Mansell v. Mansell (1989), 490 U.S. 581, 109 S. Ct. 2023, 104 L. Ed. 2d 675, the United States Supreme Court held that state courts are preempted by federal law from dividing veterans’ disability benefits and awarding any portion of them to the former spouse of a disabled veteran. It did not matter in that case that the parties before the court had also consented to the division of disability benefits which the Supreme Court held could not be divided.

The following facts were the foundation for the Mansell decision: Their marriage ended in 1979 with a divorce decree from the Merced County, California, Supreme Court. ... Mrs. Mansell and Major Mansell entered into a property settlement which provided, in part, that Major Mansell would pay Mrs. Mansell 50 percent of his total military retirement pay, including that portion of retirement pay waived so that Major Mansell could receive disability benefits. Civ. No. 55594 (May 29, 1979). In 1983, Major Mansell asked the Superior Court to modify the divorce decree by removing the provision that required him to share bis total retirement pay with Mrs. Mansell. The Superior Court denied Major Mansell’s request without opinion.

Mansell, 490 U.S. at 585-86, 109 S.Ct. at 2026-27.

In other words, the California Superior Court treated that retiree’s disability benefits as community property because he and his former spouse agreed that they could be treated as community property. However, it did not matter to the Supreme Court that a property settlement agreement formed the basis for the California Court’s decision. Whether or not based on an agreement, it looked to the substance and effect of the California Court’s decree and held that:

For the reasons stated above, we hold that the Former Spouses’ Protection Act does not grant state courts the power to treat as property divisible upon divorce military retirement pay that has been waived to receive veterans’ disability benefits.

Mansell, 490 U.S. at 594-95, 109 S.Ct. at 2027.

The majority opinion overlooks the fact that a separation agreement, by itself, has no binding effect until approved by the district court and made part of the district court’s decree. Section 40-4-201, MCA. Once the court makes terms which divide disability benefits part of its decree, it has, itself, divided disability benefits, and it cannot do so.

If an underlying agreement between the parties made any difference, a different result would have been required in Mansell where an agreement was also the basis for the decree which the court said could not be enforced. For example, in McMahan v. McMahan (Fla. Dist. Ct. App. 1990), 567 So. 2d 976, the Florida Appellate Court reversed a trial court judgment which adopted a settlement agreement which permitted a wife to receive part of a husband’s military disability benefits. That court held that: “[W]e reverse in that case law has now convincingly established that no portion of a military pension which is attributable to disability is subject to distribution for the benefit of the other spouse.” McMahan, 567 So. 2d at 978.

Unlike the majority, the Florida Court was not persuaded that the source of the court’s judgment was an agreement freely entered into between the parties. In language relevant to this case, it observed that:

Finally, appellee’s argument that this case is distinguishable from federal and state precedent reaching a contrary result, because it involves a contract between parties, is without merit. Mansell also involved a property settlement agreement which required Mr. Mansell to pay his wife 50 percent of his total retirement pay, which necessarily included a portion of disability benefits. Despite the existence of this contract, the United States Supreme Court determined that federal law controlled, and that the wife was not entitled to any portion of the military retirement pay that constituted disability.

McMahan, 567 So. 2d at 979.

The majority attempts to distinguish Mansell on the basis of its holding that the Uniformed Services Former Spouses’ Protection Act preempts California’s community property law. However, what the majority overlooks is that the division of property in Mansell was not based on California’s community property law. It was based on an agreement between the parties. Therefore, the fact that California is a community property state and Montana is not makes no difference.

Of course, the Supreme Court, in Mansell, did not hold that the parties are not free to contract. What the Court held is that the state courts in California could not enforce, by decree, provisions of a property settlement between parties which violated the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408.

Based on the majority’s rationale, the U.S. Supreme Court could not have arrived at the conclusion that it arrived at in Mansell. It would have to have held that in spite of the Act the parties had to do what they had agreed to do — divide the husband’s military disability benefits.

The similarities between Mansell and the circumstances in this case are striking. The only difference is that instead of Kenneth Stone’s disability benefits being distributed as property, they have been distributed as maintenance. However, if dividing veterans’ disability benefits is impermissible, it cannot be legitimized by simply disguising the property distribution as a maintenance award. To hold otherwise is to ignore the substance of the District Court’s decree and sanction a shell game, the purpose of which is to circumvent laws intended for the protection of disabled veterans.

For these reasons, I dissent from the majority opinion. I would reverse the order of the District Court and hold that its decree approving a separation agreement which effectively divided veterans’ disability benefits violated the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408, and therefore, was preempted by federal law.

JUSTICE NELSON joins in the foregoing dissenting opinion.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    IN THE MATTER OF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE OF ALL THE WATER, BOTH SURFACE AND UNDERGROUND WITHIN THE CLARK FORK RIVER DRAINAGE AREA ABOVE THE BLACKFOOT RIVER, INCLUDING ALL TRIBUTARIES OF THE CLARK FORK RIVER ABOVE THE BLACKFOOT RIVER IN DEER LODGE, GRANITE, LEWIS AND CLARK, MISSOULA, POWELL, AND SILVER BOW COUNTIES, MONTANA. CLIFFORD E. GRAVELEY, Claimant and Appellant, and GRAVELEY BLACK MOUNTAIN RANCH, CLIFFORD E. GRAVELEY, JAMES BIGNELL, DAN M. GRAVELEY, JIM C. QUIGLEY, WILLIAM McINTOSH, OLIVE McDONALD, MONTANA DEPARTMENT OF FISH, WILDLIFE & PARKS, Objectors and Respondents.
    No. 95-377.
    Submitted on Briefs December 7, 1995.
    Decided December 21, 1995.
    52 St.Rep. 1264. 908 P.2d 1353.
    274 Mont. 340.

      For Appellant: Peter C. Pauly, Helena. (Clifford E. Graveley)
    For Respondents: G. Steven Brown, Attorney at Law, Montana Dept, of Fish, Wildlife & Parks, Helena; John Bloomquist, Attorney at Law, Helena (Graveley Black Mountain Ranch); Cindy E. Younkin, Attorney at Law, Bozeman (Jim C. Quigley); David L. Pengelly, Attorney at Law, Missoula (James Bignell and Dan Graveley).
    For Amicus Curiae: Holly Jo Franz, Gough, Shanahan, Johnson & Waterman, Helena (Montana Mining Assn.)
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Clifford E. Graveley filed a statement of claim for one-half of an existing water right of 350 miners inches (8.75 cfs) from Three Mile Creek in Powell County. Olive McDonald, Jim C. Quigley, Clifford E. Graveley, William McIntosh, Dan M. Graveley, James E. Bignell, the Montana Department of Fish, Wildlife and Parks, and the Graveley Black Mountain Ranch (Respondents) objected to his claim. On March 17, 1994, following a hearing on respondents’ objections, the Water Master entered a report in which he found that Clifford Graveley’s water right had been abandoned by over fifty years of nonuse, and in which he concluded that Graveley’s water right claim should be terminated, and that the water right should not appear in the preliminary decree for the Clark Fork River above the Blackfoot River Basin. Graveley objected to the Water Master’s report. On April 4, 1995, the Water Court, Clark Fork Division, entered an opinion and order in which it adopted the Water Master’s report and terminated Graveley’s water right. Clifford Graveley appeals the Water Court’s order. We affirm the order of the Water Court.

There is one issue on appeal:

Did the Water Court err when it found that Graveley’s water right, appropriated and decreed for mining purposes, had been abandoned by a long period of nonuse?

FACTUAL BACKGROUND

Pursuant to the statewide adjudication of water rights, Clifford E. Graveley filed a claim for an existing water right to divert 175 miners inches of water (4.375 cfs) from Three Mile Creek, a tributary of the Little Blackfoot River. The means of conveyance of Graveley’s claim was the Ohio Ditch, which diverted water southeast from Three Mile Creek to the Ophir Mining District. The Ohio Ditch is the only ditch from Three Mile Creek capable of serving Graveley’s patented mining claims.

Graveley’s water right claim, identified as 76G-W-090819-00, was based on a right decreed to the Ophir Gold Mining Company in 1913 with a claimed priority date of June 1, 1865. The Ophir Gold Mining Company’s right was specifically decreed “for the purpose of placer mining in Ophir Gulch and Carpenter Bar and beyond and without the watershed of said Three Mile Creek.” That right was transferred four times between 1939 and 1959. On July 6, 1959, Graveley received the water right as part of a conveyance of several placer claims, water rights and ditch rights. Immediately thereafter, Graveley deeded a one-half interest in those mining claims and water rights to William L. McIntosh.

On May 17, 1985, a water right for claim 76G-W-090819-00 was granted to Graveley as part of a temporary preliminary decree for the Clark Fork River Basin above the Blackfoot River (Basin 76G). Respondents filed objections to Graveley’s claim on the basis that the claim had been abandoned through nonuse. On December 14, 1993, a Water Master conducted a hearing to consider the respondents’ objections to Graveley’s claim.

Although there was some testimony at the hearing that limited mining activity took place after 1913 in the Ophir, Snowshoe, and Carpenter Creek Mining District, in which Graveley’s claim is located, there was no dispute that that mining did not involve use of Graveley’s claimed water right. In fact, the parties agreed that Graveley’s water right had not been used at all for at least fifty years prior to June 1,1973. During this period of time, no maintenance was done to the Ohio Ditch or its headgate on Three Mile Creek. In fact, testimony revealed that at the time of the hearing the headgate was approximately 150 feet from the creek and was in a state of total disrepair.

Testimony at the hearing also revealed that Graveley had done nothing to use the water right himself. Graveley testified that his intention when he purchased the property associated with the water right claim was for ranching. Although Graveley did state that he was aware of the mining claims and the water rights associated with them, he admitted that he is not a miner and had no intention of mining the area himself. Graveley did not give a reason for the long period of nonuse of his claim except for an apparent lack of economic viability to warrant mining in the area.

Although the Water Master noted, based on the testimony of Graveley’s expert witnesses, that the Ophir Mining District might have some potential for future mining activity, he concluded that the evidence of a use of a right after July 1, 1973, is not relevant to the determination of existing water rights. Therefore, based on the testimony at trial, the Water Master found that there was a rebuttable presumption that Graveley’s water right had been abandoned by a fifty-year period of nonuse. The Water Master further found that Graveley had failed to give a reason for nonuse that would overcome the presumption of abandonment. The Master therefore held that Graveley’s water right claim should be terminated and that the claim should not appear in the preliminary decree for the Clark Fork River above the Blackfoot River Basin. Graveley objected to the Water Master’s report and appealed the decision to the Water Court, Clark Fork Division.

On appeal, the Water Court held that substantial credible evidence supported the Water Master’s findings of fact and that he correctly applied the law. The court therefore denied Graveley’s objection to the Water Master’s report and adopted the Water Master’s findings regarding Graveley’s abandonment of the mining water right. On the basis of these findings, the Water Court ordered that water right claim 76G-W-090819-00 is terminated and shall not appear in the preliminary decree of the Clark Fork River above the Blackfoot River Basin (Basin 76G).

DISCUSSION

Did the Water Court err when it found that Graveley’s water right, appropriated and decreed for mining purposes, had been abandoned by a long period of nonuse?

Whether a water right has been abandoned is a question of fact. Section 89-802, RCM (applicable here; repealed in 1973); In re Adjudication of Water Rights of the Clark Fork River (1992), 254 Mont. 11, 14, 833 P.2d 1120, 1122. We review a water court’s findings of fact to determine whether they are clearly erroneous. In re Clark Fork River, 833 P.2d at 1122.

There are two essential elements for the abandonment of a water right: nonuse of the water associated with the water right and intent to abandon the water right. In re Clark Fork River, 833 P.2d at 1123. In 79 Ranch, Inc. v. Pitsch (1983), 204 Mont. 426, 666 P.2d 215, we set forth the criteria for determining whether a water right has been abandoned. The objectors have the initial burden of proving that a water right has not been used for a sufficiently long period of time to raise a rebuttable presumption of an intent to abandon that right. 79 Ranch, 666 P.2d at 218. Once a period of nonuse sufficient to raise the presumption of an intent to abandon has been established, the burden shifts to the claimant of the water right to explain the reasons for nonuse. 79 Ranch, 666 P.2d at 218. To rebut the presumption of abandonment, the claimant must establish “some fact or condition excusing the long period of nonuse, not mere expressions of hope or desire reflecting a ‘gleam-in-the-eye philosophy’ regarding future use of the water.” In re Clark Fork River, 833 P.2d at 1123 (quoting 79 Ranch, 666 P.2d at 219).

In this case, it is undisputed that Graveley’s water right was not used for a period of at least fifty years prior to July 1, 1973. Three of the objectors who testified at the Water Master’s hearing in 1993 (whose ages were 83, 71, and 49) stated that the Ohio Ditch had not been used to divert any water from Three Mile Creek during their lifetimes. Graveley’s expert witness, Dr. McCleran, testified that in his opinion the Ohio Ditch had not been used to divert water since the early part of this century. Graveley himself, who was 71 at the time of the hearing, testified that there had never been a call for the disputed water right during his lifetime.

In 79 Ranch, we held that a period of forty years of continuous nonuse of an irrigation right was sufficient to raise a presumption of abandonment. 79 Ranch, 666 P.2d at 218. In In re Clark Fork River, we held that a period of twenty-three years of continuous nonuse of municipal water rights was sufficient to raise a presumption of abandonment. In re Clark Fork River, 833 P.2d at 1123. In this case, the uncontroverted evidence establishes that Graveley’s water right claim, appropriated and decreed for mining purposes, was not used for a period of over fifty years prior to 1973. Based on the standards established by this Court, it is clear that this showing of fifty years of continuous nonuse raised a rebuttable presumption that Graveley intended to abandon his water right.

The burden of proof therefore shifted to Graveley to rebut the presumption of abandonment by explaining the reasons for nonuse of the water right. At the Water Master’s hearing, however, Graveley offered no excuse for the nonuse of his mining water right claim except for the apparent lack of economic viability of mining the area. Graveley did not present evidence that either he or his predecessors had made any effort to make use of the disputed water right for over fifty years prior to July !, 1973. In fact, Graveley admitted that he had done nothing to use the water right himself and had made no effort to make the Ohio Ditch functional for exercise of that right.

Instead, Graveley maintained that the cyclical nature of the mining industry and its uncertain economics were reason enough to explain the long period of nonuse. Graveley testified that he was aware of the underlying land’s potential for mineral development when he purchased the patented mining claim and was awaiting a turn of events in the mining industry to realize the value of both his water right and the underlying mineral interest. Graveley’s expert witness, Dr. McCleran, testified that Graveley’s mineral rights, like other rights in Powell County, were merely “awaiting renewed interest.” Dr. McCleran testified that the mining industry is subject to fluctuations in the national and international economies, the price of commodities such as gold, developments in mining technology, and the regulatory climate in the national, state, and local levels.

On appeal, both Graveley and the Montana Mining Association, which filed an amicus curiae brief, contend that the uniqueness of the mining industry compels a different standard for the determination of the abandonment of a water right. In its brief, the Montana Mining Association maintains that “[t]he rule of abandonment as applied to water rights used for mining purposes must recognize that periods of nonuse are common for mineral properties and rarely indicate an intent to abandon the appurtenant water rights.” In effect, Graveley and the Montana Mining Association ask this Court to differentiate between the different uses of water in determining the factual question of whether a water right has been abandoned.

We see no reason, however, to make such a differentiation. The law of abandonment has not developed by distinguishing the various uses of water. The statutory guidelines for the determination of abandonment of a water right set forth in § 85-2-404, MCA, characterize all water rights as “appropriation rights,” and make no distinction between the uses of water. Although § 85-2-404, MCA, will not become effective for existing rights until they have been finally adjudicated, we cited the statute in our decision in 79 Ranch, 666 P.2d at 219, as the “general, modern trend,” and recognized the importance of “providing an approach for the determination of abandonment of water rights consistent with the express intent of our legislature.” The Montana Legislature has clearly not chosen to accord a different standard for the determination of the abandonment of water rights used for mining purposes.

In addition, Montana’s case law has never discriminated between the different uses of water in determining whether a water right has been abandoned. See, e.g., Smith v. Hope Mining Co. (1896), 18 Mont. 432, 45 P. 632 (water rights for mining); Holstrom Land Co. v. Meagher County Newlan Creek Water District (1979), 185 Mont. 409, 605 P.2d 1060 (water rights for irrigation); 79 Ranch, 666 P.2d 215 (water rights for irrigation); In re Clark Fork River, 833 P.2d 1120 (municipal water rights). In fact, in 79 Ranch, in response to a claim that a water right claimant’s predecessor had not had sufficient funds to irrigate with the water from the claim, this Court relied on a Colorado mining water rights case, CF & I Steel Corporation v. Purgatoire River Water Conservancy District (Colo. 1973), 515 P.2d 456, in which the Colorado Supreme Court held that the economic realities of the mining industry were not enough to justify fifty-four years of nonuse of a water right. Without making a differentiation between mining and irrigation water rights, we stated:

Here, [the claimant] argues that his predecessors in interest did not have sufficient funds to irrigate. ... In response to this same argument, the Colorado Court has stated:

“... Considering the large demands for all of the appropriable water in this state ..., it might be said that nearly every abandoned water right could have its non-use justified by the economics that might prevail sometime in the future for the use of this water .... This gleam-in-the-eye philosophy is not consistent with the protection and preservation of existing water rights.” CF & I Steel Corporation, 515 P.2d at 458.

(Emphasis added).

Graveley’s claim that his mining rights might someday become economically viable reflects nothing more than this “gleam-in-the-eye philosophy” of hope, which we specifically rejected in both 79 Ranch and In re Clark Fork River. At the Water Master’s hearing, Graveley established no fact or condition which would excuse the fifty-year period of nonuse. In addition, he produced no evidence that he had intended to put the water right to beneficial use. Graveley’s only rationale for the nonuse of his water right was the lack of profitability of mining his patented mining claims. His only evidence of intent was a hope that that claim might someday become economically viable. However, as the Colorado Supreme Court stated in CF & I Steel Corp., 515 P.2d at 459: “In viewing the issue of abandonment, one must look to the water right as decreed and not to some possible hoped-for future use at some undetermined place.”

Therefore, because we reject the argument that mining water right uses should receive unique treatment for the purposes of the factual determination of abandonment, and because we find that Graveley did not introduce evidence sufficient to rebut the presumption of abandonment in this case, we conclude that the Water Court’s finding that Graveley abandoned his claim to the disputed water right is supported by substantial evidence. Accordingly, we affirm the order of the Water Court which terminated Graveley’s water right claim and ordered that the water right shall not appear in the preliminary decree for the Clark Fork River above the Blackfoot River Basin.

CHIEF JUSTICE TURNAGE, JUSTICES ERDMANN, HUNT and LEAPHART concur.

      . We note that the purpose of the statewide adjudicaion of water rights is to determine water rights as they existed on July 1, 1973, when the Montana Water Use act was enacted. Therefore, evidence of the use of a right after July 1, 1973, is not relevant to the determination of abandonmen of an existing water right. See In re Clark Fork River, 833 P.2d at 1123-24.


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DAVID LLAMAS BLAKE, Defendant and Appellant.
    No. 95-085.
    Submitted on Briefs November 16, 1995.
    Decided December 21, 1995.
    52 St.Rep. 1269.
    908 P.2d 676.
    274 Mont. 349.

      For Appellant: Torger S. Oaas, Lewistown; John Keith, Great Falls.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; John P. Connor, Jr., and Elizabeth L. Griffing, Assistant Attorneys General, Helena; James A. Hubble, County Attorney, Stanford.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

David Llamas Blake (Blake) appeals the decision of the Tenth Judicial District Court, Judith Basin County, denying him eligibility for parole or participation in a supervised release program. We affirm.

The sole issue on appeal is whether the District Court erred in denying Blake eligibility for parole or participation in a supervised release program.

Blake is a native of Mexico. He has spent nearly the past twenty years in the United States, primarily working on farms and ranches. Previous employers indicate Blake was a skilled and hard-working ranch hand.

Wayne Stevenson, a prominent Montana rancher, was the owner and operator of the Basin Angus Ranch near Hobson, Montana. In September 1993, Stevenson hired Blake to work as a ranch hand. Blake was provided a home for himself and his family as well as a monthly salary.

On the evening of March 27, 1994, Stevenson went to the calving barns located near Blake’s residence. Stevenson met Blake at the calving barn. An argument ensued between the two men. Following the argument, Blake retrieved a .22 caliber rifle and fired eight shots at Stevenson. Six shots struck Stevenson, causing his death. Blake put Stevenson’s body in the bucket of a skid-steer loader and moved it from the calving barn to a horse barn, where he buried it under a pile of dirt and manure.

Blake returned to his residence and telephoned Stevenson’s wife. Without identifying himself, he told Mrs. Stevenson that her husband had been kidnapped and demanded a one million dollar ransom. Mrs. Stevenson did not know it was Blake who made the ransom demand. Knowing that her husband had gone to the calving barns near Blake’s residence, Mrs. Stevenson telephoned Blake and asked him if he had seen her husband. Blake informed Mrs. Stevenson that he had not seen her husband, but would go and look for him. Blake called Mrs. Stevenson a short while later, stating that he could not locate her husband but that his pickup truck was parked near the calving barn.

Following a criminal investigation, Blake was charged with deliberate homicide. He pled guilty to deliberate homicide resulting in the death of Wayne Stevenson. Blake admitted that he shot Stevenson repeatedly with a .22 caliber rifle, buried Stevenson’s body and made the ransom call to Mrs. Stevenson.

Blake was represented by counsel at all proceedings relevant to this matter. At the change of plea hearing, Blake acknowledged the severity of his potential punishment and the fact that he might not be eligible for parole. Blake likewise signed an Acknowledgment of Rights and Plea Agreement which explicitly set forth that he could be denied parole eligibility at sentencing.

The District Court sentenced Blake to eighty years in the Montana State Prison for the crime of deliberate homicide. The court sentenced Blake to an additional ten years for the use of a weapon while committing the deliberate homicide. The court ordered that the sentences run consecutively and that Blake be ineligible for parole or participation in a supervised release program for the duration of his incarceration.

Blake now appeals that portion of his sentence in which the court denied him eligibility for parole or participation in a supervised release program.

Issue

Did the District Court err in denying Blake eligibility for parole or participation in a supervised release program?

District courts are afforded broad discretion in sentencing criminal defendants and we will not overturn a court’s sentencing decision absent an abuse of discretion. State v. Losson (1993), 262 Mont. 342, 352, 865 P.2d 255, 261. Section 46-18-202(2), MCA, provides:

Whenever the district court imposes a sentence of imprisonment in the state prison for a term exceeding 1 year, the court may also impose the restriction that the defendant is ineligible for parole and participation in the supervised release program while serving that term. If the restriction is to be imposed, the court shall state the reasons for it in writing. If the court finds that the restriction is necessary for the protection of society, it shall impose the restriction as part of the sentence and the judgment must contain a statement of the reasons for the restriction.

The District Court set forth in its judgment the rationale for denying Blake eligibility for parole or participation in a supervised release program. The court recounted the facts of this case, including Blake’s shooting of Stevenson, the burying of the body in a manure pile and the ransom demand placed on the victim’s wife. The court concluded that Blake had shown no true remorse for what he had done. The court also found that there was no apparent reason for Blake’s violent attack of Stevenson and that immediately prior to the incident Blake had been leading a normal life. The court further noted that there was a warrant for Blake’s arrest on another charge of homicide in California. All of these factors led the District Court to believe that there was little chance that Blake could be rehabilitated and that he would be a continuing danger to society.

Blake contests several of the court’s reasons for denying his eligibility for parole or participation in a supervised release program. First, he argues that the court erred in concluding that he showed no remorse for his actions. Blake points out that he was emotional during the change of plea hearing and that the proceedings had to be stopped several times to allow him to compose himself.

However, the District Court found that the only remorse exhibited by Blake was that of a man who had been caught. The court interpreted Blake’s emotional displays as sorrow that he had been caught, not as sorrow for killing Wayne Stevenson or sorrow for the pain he caused the Stevenson family. The District Court is in the best position to weigh the credibility and veracity of witnesses and wé will not substitute our judgment for that of the District Court. State v. Flack (1993), 260 Mont. 181, 189, 860 P.2d 89, 94.

Blake also argues that the record demonstrates that he was a good worker, a good family man, and, apart from this incident, led a stable and quality life. Blake insists that his lack of a criminal record and otherwise virtuous lifestyle are evidence that he could be rehabilitated and that the court erred in finding otherwise.

The District Court, however, did not find Blake’s pre-conviction lifestyle as evidence that he could be rehabilitated. To the contrary, the court found that Blake gained the trust and admiration of his former employers and community, and then turned and killed his employer for apparently no good reason. The court found that this indicated that Blake was completely unpredictable and would be an ongoing danger to society. Further danger to society has long been considered grounds for denying a defendant eligibility for parole. State v. Beach (1985), 217 Mont. 132, 705 P.2d 94. The record clearly indicates that Blake is unpredictable and would be a further danger to society if released.

Blake also argues that the court erred in stating that there was apparently no motive behind this crime. Blake maintains that Stevenson insulted his wife prior to the shooting incident and this was the motivating factor for the murder.

While Blake made these allegations, the record is replete with testimony from Stevenson’s family, friends and employees that such conduct would have been completely out of character for Stevenson. When there is conflicting evidence, the district court is in the best position to weigh the credibility of the various witnesses in coming to its conclusions. Flack, 860 P.2d at 94. Regardless, making a derogatory remark about Blake’s wife can hardly be considered valid “motive” for shooting Stevenson to death.

Finally, Blake argues that the District Court erred in considering the extradition warrant for a suspected homicide committed in California. Blake did not object to the court’s consideration of the warrant at sentencing. Since Blake failed to object at trial, this Court will not consider this argument on appeal. Section 46-20-104(2), MCA; Whiting v. State (1991), 248 Mont. 207, 220, 810 P.2d 1177, 1187.

We conclude that the District Court did not abuse its discretion in denying Blake eligibility for parole or participation in a supervised release program. The evidence demonstrates that Blake acted unpredictábly, without motivation, showed no true remorse for his crime, and if released -would be a further danger to society.

We affirm the decision of the District Court.

JUSTICES NELSON, TRIEWEILER, HUNT and LEAPHART concur.


text:
    JERRY SWENSON, Plaintiff and Appellant, v. PAUL JANKE and ALICE JANKE, Defendants and Respondents.
    No. 95-311.
    Submitted on Briefs November 30, 1995.
    Decided December 28, 1995.
    52 St.Rep. 1272.
    908 P.2d 678.
    274 Mont. 354.

      For Appellant: James Serenar, Angel, Serenar, Coil, Bartlett & Fay, Bozeman.
    For Respondent: J. David Penwell, Attorney at Law, Bozeman.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The plaintiff, Jerry Swenson, filed a complaint in Gallatin County Justice Court to terminate Paul and Alice Janke’s tenancy at his mobile home park and to regain possession of the space they occupied. Jankes alleged for their counterclaim that Swenson failed to provide necessary services and attempted to evict them in retaliation for a notice of problems they had sent him. Swenson’s claim was dismissed after he failed to appear, and by stipulation, Jankes were awarded attorney fees. Swenson appealed to the District Court for the Eighteenth Judicial District in Gallatin County. After de novo consideration of the parties’ claims, the District Court dismissed Swenson’s claims and held that Swenson failed to provide necessary services and that his attempt to evict was in retaliation for Jankes’ notice and for participation in a tenants’ association. The District Court awarded Jankes three months’ rent as damages, and awarded them their attorney fees. Swenson appeals that decision. We affirm the judgment of the District Court.

We restate the issues on appeal as follows:

1. Was the District Court’s finding of retaliatory conduct clearly erroneous?

2. Did the District Court err when it awarded damages equal to three months’rent pursuant to § 70-24-311, MCA?

3. Was Swenson entitled to terminate Jankes’ tenancy without cause pursuant to § 70-24-441, MCA?

4. Did the District Court abuse its discretion when it awarded $4775 to Jankes for their attorney fees?

FACTUAL BACKGROUND

In February 1993, Swenson, the operator of Lexley Acres Mobile Park in Belgrade, Montana, served Jankes with a “Notice to Quit and Notice Terminating Tenancy” in an effort to evict them from the mobile home pad they had rented from him on a month-to-month basis since 1986.

Jankes, however, alleged that prior to receipt of the notice they had endured various illegal conditions on the premises, including an inadequate water supply, an overflowing garbage receptacle, raw sewage underneath their mobile home and on the ground adjacent to their mobile home, and a “burn pile” next to their mobile home which created a smoky and unsafe condition.

On July 8, 1992, Jankes had notified Swenson of the above conditions pursuant to § 70-24-406, MCA. In the notice, they stated that because of the conditions, Swenson was in violation of § 70-24-303, MCA, which requires landlords to maintain their premises. They also demanded that he remedy the problems within fourteen days from the date of the notice, however, they allege that he failed to do so.

In November 1992, Jankes joined a tenants’ association, and in January 1993, Alice Janke, as a member of the tenants’ association for Swenson’s mobile home park, appeared before the legislature and testified in support of an amendment to the Landlord and Tenant Act which related to the operation of mobile home parks. The amendment, which subsequently became law, limited the ability of landlords to evict tenants.

On February 4, 1993, approximately two weeks after the hearing which Alice Janke and Swenson attended, Swenson attempted to retake possession of Jankes’ space and terminate their tenancy. He served a notice of termination followed by a complaint in Justice Court after they failed to vacate. In his complaint, he alleged that they were unlawfully in possession of the property they leased from him.

Jankes counterclaimed and asserted that Swenson violated the Landlord and Tenant Act when he failed to provide necessary services and when he took retaliatory action. They requested attorney fees and damages equal to the greater of three months’ rent or treble damages. They also requested dismissal of his complaint.

Iri Justice Court, the parties stipulated that a judgment would be entered against Swenson for Jankes’ attorney fees in the amount of $350, and that Swenson would be allowed a de novo appeal to the District Court. Following the appeal to and a nonjury trial in the District Court, that court dismissed Swenson’s claims in their entirety and held that Swenson failed to provide necessary services in violation of Montana law and health department regulations and that his action to terminate Jankes’ tenancy was in retaliation for their notice of July 8,1992, and for Alice Janke’s participation in a tenants’ association. The court awarded Jankes $540 in damages — the equivalent of three months’ rent — and attorney fees.

ISSUE 1

Was the District Court’s finding of retaliatory conduct clearly erroneous?

Whether a landlord has engaged in retaliatory conduct prohibited by statute is a question of fact. Section 70-24-431, MCA, commissioner’s comments. The standard of review for the District Court’s findings of fact is whether they are clearly erroneous. Rule 52(a), M.R.Civ.R; Brown v. Tintinger (1990), 245 Mont. 373, 377, 801 P.2d 607, 609.

The District Court found that Swenson’s actions were retaliatory because he initiated efforts to retake possession of the property before he rectified the problems in Jankes’ complaint. The court therefore concluded that Swenson violated § 70-24-431, MCA. On appeal, Swenson contends that the court’s finding of retaliation was clearly erroneous.

Section 70-24-431(1), MCA, prohibits retaliatory conduct by a landlord and provides that:

Except as provided in this section, a landlord may not retaliate by increasing rent, decreasing services, or by bringing or threatening to bring an action for possession after the tenant:

(a) has complained of a violation applicable to the premises materially affecting health and safety to a governmental agency charged with responsibility for enforcement of a building or housing code;

(b) has complained to the landlord in writing of a violation under 70-24-303; or

(c) has organized or become a member of a tenant’s union, mobile home park tenant association, or similar organization.

In a letter written on July 8,1992, Jankes complained to Swenson about several problems. They informed Swenson that he failed to “maintain in a good and safe working order electrical, plumbing and sanitary facilities” and that the “plumbing and sanitary facilities ... are broken and are in need of repair.” The letter also notified Swenson that he failed to provide and maintain appropriate garbage receptacles and failed to supply running water to their home.

At trial, Jankes testified that they joined a tenants’ association in November 1992 and that Alice Janke, as a member of that tenant’s association, appeared before the 1993 Session of the Montana Legislature and testified in support of an amendment to the Landlord and Tenant Act. The amendment, which related to the operation of mobile home parks and limited the ability of landlords to evict tenants, passed and became law. Swenson attended the hearing at which Alice Janke spoke.

Both Jankes’ complaint to Swenson, and Alice Janke’s testimony on behalf of the tenant’s association occurred prior to Swenson’s February 4, 1993, attempt to retake possession of Jankes’ space and terminate their tenancy.

Jankes’ complaints to Swenson within months of his eviction notice, Swenson’s failure to address those complaints, Jankes’ membership in the tenants’ association and activities on behalf of that association, and Swenson’s disapproval of those activities, provided substantial evidence in support of the District Court’s finding of retaliatory conduct.

For these reasons, we hold that substantial credible evidence supports the District Court’s finding that Swenson’s actions were retaliatory and that the court’s finding of retaliatory conduct was not clearly erroneous.

ISSUE 2

Did the District Court err when it awarded damages equal to three months’ rent pursuant to § 70-24-311, MCA?

We review a district court’s conclusions of law to determine if the court’s application of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 898 P.2d 680, 686.

The court concluded that pursuant to § 70-24-411, MCA, Jankes were entitled to an award of damages equal to three months rent. However, Swenson claims that § -411 required Jankes to prove purposeful conduct, which they did not do.

Section 70-24-411, MCA, provides in part that:

If a landlord unlawfully removes or excludes the tenant from the premises or purposefully diminishes services to the tenant by interrupting or causing the interruption of heat, running water, hot water, electricity, gas, or other essential services, the tenant may recover possession or terminate the rental agreement and, in either case, recover an amount not more than 3 months’ periodic rent or treble damages, whichever is greater.

(Emphasis added.)

While on its face § 70-24-411, MCA, does require purposeful conduct, the retaliatory conduct statute allows remedies pursuant to § -411 for retaliatory conduct. Specifically, subsection (2) of the statute provides that “[i]f the landlord acts in violation of subsection (1) of this section, the tenant is entitled to the remedies provided in 70-24-411 ...” Section 70-24-431(2), MCA.

Here, the court, as discussed in Issue 1, found that Swenson acted in retaliation and concluded that he violated § 70-24-431, MCA. Accordingly, Jankes were entitled to “recover an amount not more than 3 months’ periodic rent or treble damages, whichever is greater.” Section 70-24-411, MCA. Therefore, we need not discuss whether Swenson acted purposefully to conclude that the District Court correctly awarded damages pursuant to § 70-24-411, MCA.

ISSUE 3

Was Swenson entitled to terminate Jankes’ tenancy without cause pursuant to § 70-24-441, MCA?

We next consider Swenson’s allegation that as a landlord he is entitled to terminate a tenancy without reason pursuant to § 70-24-441(2), MCA, and is entitled to bring an action for possession if the tenant does not remove himself from the premises.

Section 70-24-441(2), MCA, does allow a landlord to terminate a tenancy, however, the retaliatory conduct statute discussed above provides that “[i]f the landlord acts in violation of subsection (1) of this section, the tenant ... has a defense in any retaliatory action against him for possession.” Section 70-24-431(2), MCA.

Here, the District Court found that Swenson acted in retaliation and correctly concluded that such conduct violated § 70-24-431, MCA. Therefore, we conclude that Swenson’s violation was a defense to Swenson’s action to regain possession.

ISSUE 4

Did the District Court abuse its discretion when it awarded $4775 to Jankes for their attorney fees?

A district court’s award of reasonable attorney fees is a discretionary act. Ihler v. Chisholm (1993), 259 Mont. 240, 246, 855 P.2d 1009, 1013. Therefore, we will not reverse the district court absent an abuse of discretion. Ihler, 855 P.2d at 1013; see May v. First Nat’l Pawn Brokers (1995), 270 Mont. 132, 134, 890 P.2d 386, 388.

After trial, the court entered judgment in favor of Jankes and awarded damages, attorney fees, and costs. Later, the court held a hearing to determine the amount of the attorney fees, and afterward, awarded Jankes $4775. Swenson does not contend that attorney fees should have been denied, but contends that the amount of attorney fees awarded was unreasonable.

We have stated that in determining what constitutes reasonable attorney fees, the following factors should be considered as guidelines: (1) the amount and character of the services rendered; (2) the labor, time, and trouble involved; (3) the character and importance of the litigation in which the services were rendered; (4) the amount of money or the value of the property to be affected; (5) the professional skill and experience called for; (6) the attorneys’ character and standing in their profession; and (7) the result secured by the services of the attorneys. Majers v. Shining Mountains (1988), 230 Mont. 373, 379-80, 750 P.2d 449, 453; see also Carkeek v. Ayer (1980), 188 Mont. 345, 347, 613 P.2d 1013, 1015; First Security Bank of Bozeman v. Tholkes (1976), 169 Mont. 422, 429-30, 547 P.2d 1328, 1332.

A review of the record reveals not only that Jankes’ witness testified to each of the seven factors, but also that Swenson neither objected to nor rebutted this testimony. In fact, at the hearing, counsel for Swenson stated that:

I’m not questioning the number of hours that Mr. Penwell spent or the $100 fee either. I request that it’s more than legitimate for a man of his experience. So any reference to that in my brief should be withdrawn, Your Honor, as to the number of hours.

Therefore, we conclude that the District Court did not abuse its discretion when it awarded fees in the amount of $4775.

Additionally, Jankes have incurred attorney fees because of Swenson’s appeal to this Court, and request an additional award. Section 70-24-442, MCA, provides that reasonable attorney fees and costs may be awarded to the prevailing party in an action pursuant to the Residential Landlord and Tenant Act of 1977. Therefore, we conclude that Jankes are entitled to an award of reasonable attorney fees for this appeal.

For these reasons, we affirm the order of the District Court and remand to the District Court for further proceedings to determine a reasonable attorney fee award for services rendered to the respondents on appeal.

JUSTICES GRAY, HUNT, NELSON and ERDMANN concur.


author: JUSTICE LEAPHART JUSTICE GRAY,

text:
    IN RE THE MARRIAGE OF MARY ANN ZUELKE, now known as MARY ANN BARBIE-RICE, Petitioner and Appellant, and GORDON STEPHEN ZUELKE, Respondent and Respondent.
    No. 95-286.
    Submitted on Briefs November 16, 1995.
    Decided December 14, 1995.
    52 St.Rep. 1225.
    909 P.2d 684.
    274 Mont. 362.

      For Appellant: John Bobinski, Attorney at Law, Helena.
    For Respondent: Dennis G. Loveless, Attorney at Law, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Mary Ann Barbie-Rice appeals from the April 18, 1995, Order Implementing Equal Custody of the First Judicial District Court, Lewis and Clark County. We affirm.

We restate the issues raised on appeal as follows:

1. Did the District Court err in implementing an equal custody arrangement of the parties’ child?

2. Did the District Court abuse its discretion in allowing an expert witness to testify and to give his custody recommendations and in not granting a continuance?

This case arises out of a protracted custody and visitation dispute between Mary Ann [Zuelke] Barbie-Rice (Mary Ann) and Gordon Stephen Zuelke (Gordon). One child, Ashley Annamarie Zuelke, was born to the parties on August 22, 1987. Mary Ann and Gordon’s marriage was dissolved in 1990. In its May 30, 1990, Findings of Fact, Conclusions of Law and Decree, the District Court placed Ashley in the joint custody of both parties. The District Court adopted its “Initial Residential Plan” and noted that additional contact with Gordon would be phased in over time. Further, the District Comb ordered that a determination of whether equal time with each party was in Ashley’s best interest would be made when she reached school age.

In May of 1992, a hearing was held and, upon the recommendation of Dr. Black, a Licensed Clinical Psychologist who had evaluated Ashley and had been involved since the 1990 Decree, the District Court phased in additional contact with Gordon. The District Court ordered that “[i]f either party has concerns with ... the implementation of a plan to permit Ashley to spend an equal amount of time with both parents, they are to discuss the same with Dr. Black.” Further, the District Court noted that serious tension and hostility between Mary Ann and Gordon was having an adverse impact on Ashley.

Thereafter, in November of 1993, Gordon asked Dr. Black to start a phase-in program for equal time custody. In December of 1994, Dr. Black mailed a written report to the District Court recommending equal custody with each parent having alternating six-month periods. A hearing was held on February 28, 1995, and on April 18, 1995, the District Court ordered that equal time custody be implemented. Mary Ann appeals from this order.

1. Did the District Court err in implementing an equal custody arrangement of the parties’ child?

In reviewing a district court’s child custody determination, we determine whether the district court’s findings are clearly erroneous. In re Marriage of Dreesbach (1994), 265 Mont. 216, 220-21, 875 P.2d 1018, 1021. The findings of fact must be based on substantial credible evidence, and the court’s decision will be upheld unless a clear abuse of discretion is shown. Marriage of Dreesbach, 875 P.2d at 1021; In re Marriage of Hunt (1994), 264 Mont. 159, 164, 870 P.2d 720, 723.

In its May 30, 1990, Findings of Fact, Conclusions of Law and Decree, the District Court stated that, as time goes by, additional contact with Gordon should be phased into the custody arrangement. The court ordered that “the parties shall work with the counselor to develop a plan to permit Ashley to spend more time with Gordon.” In its finding number 11, the court stated that:

It is in the best interest of Ashley that the above plan, or some form of it, remain in effect until Ashley reaches school age, and that the parties at that time renegotiate a plan to permit Ashley to spend an equal amount of time with her father. When Ashley reaches school age, the parties shall consult with Dr. Black, or another qualified professional. The consultation shall have as its goal the determination of whether equal time with both parents is in the child’s best interests. Equal time shall be ordered if Dr. Black, or another qualified professional, feels that equal time is in the child’s best interests.

This 1990 provision contemplated the phase-in which later occurred in this case. Dr. Black made a recommendation that equal custody was in Ashley’s best interest and the District Court implemented that recommendation. In its April 18,1995 order, the court stated that “[i]t is clear that since June 1 of 1990 this Court has contemplated that the parties would be moving to an equal custody plan with their minor child.”

Mary Ann argues that the District Court order implementing equal custody was a change in her primary residential custody and, as such, the prerequisites of § 40-4-219, MCA, had to be satisfied. Further, Mary Ann asserts that this Court’s holding in In re Marriage of Johnson (1994), 266 Mont. 158, 879 P.2d 689, is controlling and requires that the jurisdictional requirements set forth in § 40-4-219, MCA, be satisfied when the effect of the order is to substantially change the child’s primary residence. The District Court found that:

This is not a situation where a change in custody was not contemplated by this Court from the entry of its original Order in June of 1990. All the parties were put on notice at that time that we were working toward as equal custody arrangement. This is not a situation where one parent is seeking to significantly alter a custody arrangement. This Court has specifically adopted a custody plan in its decision of June 1,1990, and that plan included an eventual move to equal custody.

The fact that equal custody had been contemplated since the original Decree in 1990 supports the District Court’s conclusion that the Order Implementing Equal Custody was precisely that — implementation of a previous order — not a modification of custody.

The record reflects that the District Court carefully considered the best interests of the child, as set forth in § 40-4-212, MCA, in implementing the equal custody arrangement. The court noted that “Mary Ann exudes anxiety and that feeling is picked up by the child” and that the equal custody implementation would benefit Ashley’s mental health development. We conclude that the District Court’s findings are not clearly erroneous and that the District Court did not abuse its discretion in implementing equal custody.

In addition, Mary Ann asserts that the District Court erred in not requiring Gordon to file an affidavit supporting what she termed his “modification of custody,” pursuant to § 40-4-220, MCA. However, the District Court determined, and we agree, that § 40-4-220, MCA, is inapplicable in the instant case. The District Court’s implementation of joint custody was not a modification, rather, it was the implementation of the 1990 Decree. Thus, compliance with § 40-4-220, MCA, was not necessary.

2. Did the District Court abuse its discretion in allowing an expert witness to testify and to give his custody recommendations and in not granting a continuance?

Mary Ann argues that the District Court erred in allowing Dr. Black to testify at the hearing. She alleges that Dr. Black had a “built in bias” in recommending equal custody and that this bias compromised his impartiality in the evaluation. In reviewing a district court’s ruling on the qualifications and competency of an expert witness to express an opinion we have held that:

[T]he determination of the qualification and competency of expert witnesses rests largely within the trial judge, and without a showing of abuse of discretion, such determination will not be disturbed.

Cottrell v. Burlington Northern R. Co. (1993), 261 Mont. 296, 301, 863 P.2d 381, 384 (citing Foreman v. Minnie (1984), 211 Mont. 441, 445, 689 P.2d 1210, 1212). Mary Ann asserted her objection to Dr. Black’s testimony both to Dr. Black during his evaluation, and to the District Court. However, the court found that Dr. Black’s recommendation of equal custody should be implemented and that equal custody was in Ashley’s best interest. We cannot say that the discretionary decision to permit Dr. Black to testify was an abuse of discretion, thus, the District Court’s determination will not be disturbed.

Finally, Mary Ann asserts that she should have been granted a continuance in order for her to obtain an expert of her own choosing. In reviewing discretionary trial court rulings we determine whether the district court abused its discretion. May v. First Nat’l Pawn Brokers, Ltd. (1995), 270 Mont. 132, 133, 890 P.2d 386, 388. The District Court noted that Dr. Black had an ongoing involvement in the case, and had initially been involved at Mary Ann’s request. The court found that these parties had already seen numerous counselors. Further, the court noted that it had previously expressed its concern, in its June 1992 order, that too many counselors had been involved in the case. The court stated that “[Constantly involving this child with new counselors and in custody fights is not helping any of these parties.” Thus, based on the District Court’s findings, its 1992 order, its admonition of the parties of the detrimental nature of additional custody disputes, and Dr. Black’s testimony, we cannot say that the District Court abused its discretion in refusing to grant the continuance in order to allow Mary Ann to secure the testimony of an additional expert witness.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES ERDMANN and HUNT concur.

JUSTICE TRIEWEILER did not participate.

JUSTICE GRAY,

dissenting.

I respectfully dissent from the Court’s opinion on the first, and dispositive, issue in this case. I would reverse and remand for such further proceedings as may be appropriate.

The threshold issue in this case is whether the District Court’s April 18, 1995, order for an equal time custody arrangement is a modification of its earlier custody determination or a mere implementation of an earlier order. If the order at issue is a modification of a prior custody decree which effects a substantial change in the child’s primary residence, it is clear that the jurisdictional prerequisites of § 40-4-219, MCA, must be met (In re Marriage of Johnson (1994), 266 Mont. 158, 166, 879 P.2d 689, 694), and is undisputed that those requirements were not considered by the District Court here. If, on the other hand, the order merely implements a prior custody decree, then the District Court need consider only the “best interest” test contained in § 40-4-212, MCA.

The Court concludes that the District Court’s April 18,1995, order did not modify an earlier custody order, but merely implemented such an order. It is my view that the Court fails to read the earlier order carefully, and then to apply the law to that order. Doing so mandates a reversal of the District Court.

Mary Ann and Gordon’s marriage was dissolved by decree dated May 30,1990. The District Court made extensive findings of fact and conclusions of law with regard to distribution of the marital estate, child custody and child support. Only the findings and conclusion relating to child custody are relevant here.

Mary Ann and Gordon’s minor daughter Ashley was just over two years old at the time of the dissolution. The parties agreed, and the District Court found, that it was in Ashley’s best interest to be placed in the joint legal custody of her parents, with Mary Ann designated as the primary residential custodian.

Ashley had been traumatized by the circumstances surrounding the dissolution of her parents’ marriage and counseling was necessary to help her deal with the situation. Dr. Hugh Black had been counseling Ashley and presented a two-phase residential plan for the court’s consideration. In Finding of Fact Number 9, the District Court set out the “Initial Residential Plan.” During the period of the initial plan, Ashley would continue to receive mental health counseling and Gordon’s visitations with Ashley during that time were severely limited.

The District Court also set out in Finding of Fact Number 9 the “Phase-in of Permanent Residential Plan.” Under the permanent plan, Gordon had visitation on alternating weekends and school holidays and on two evenings each week; each party was entitled to spend one-half of the summer vacation with Ashley.

In Finding of Fact Number 11, the District Court stated that, at the time Ashley reached school age, the parties should consult with Dr. Black (or another qualified professional); the consultation “shall have as its goal a determination of whether equal time with both parents is in the child’s best interests.” The finding went on to state that an equal time custody arrangement would be ordered if, at that time, a qualified professional felt that it was in Ashley’s best interests.

The District' Court’s May 30, 1990, decree contained only one conclusion of law relating to child custody. Conclusion of Law Number 3 states: “It would be in the best interest of the minor child if her custody and visitation were regulated as set forth in Finding of Fact Number 9 above.” As outlined above, that finding ends with a residential plan which, by its terms, is denominated “permanent.” Nothing in the District Court’s conclusions refers to either the “goal” relating to equal time which is contained in Finding of Fact Number 11 or the potential referenced there for redetermining Ashley’s best interests at some future time.

Thus, it is clear that the District Court’s May 30, 1990, custody determination ends at the point where the “Permanent Residential Plan” has been phased in. At that point, Mary Ann remained Ashley’s primary residential custodian, with liberal visitation by Gordon.

Both statute and case law are clear with regard to modifying a prior custody decree. By its terms, § 40-4-219, MCA, vests discretion in a district court to modify a prior custody decree, but only if statutory requirements are met. A“prior custody decree” is “a custody determination contained in a judicial decree or order ....” Section 40-4-219(7), MCA (emphasis added). We consistently have held that the § 40-4-219, MCA, requirements are jurisdictional prerequisites to modification of a custody decree. See, e.g., Marriage of Johnson, 879 P.2d 689, and cases cited therein.

Nor can it be disputed that a change from Ashley residing primarily with Mary Ann to an “equal time” custody arrangement where Ashley would reside with Gordon for six months of the year is a significant change in a child’s living arrangements. Indeed, Dr. Black testified in this case that the change proposed by Gordon — and recommended by Dr. Black — was a fairly radical change in the existing custody arrangement.

As we stated so recently in Marriage of Johnson, motions to modify child custody provisions in a dissolution decree “which have the effect of substantially changing the primary residence” of a child must satisfy the jurisdictional requirements contained in § 40-4-219, MCA. Marriage of Johnson, 879 P.2d at 694. The legislature’s rationale for imposing such requirements was to provide for the continuity and stability of a child’s living arrangements. Marriage of Johnson, 879 P.2d at 692.

The permanent residential plan adopted as the District Court’s conclusion of law in 1990 is the “custody determination” made by the court. Whatever the effect of the court’s finding relating to a possible equal time custody arrangement in the future, it cannot constitute a “custody determination.” A custody “determination” can be made only by a court and only after consideration by the court of “all relevant factors.” Section 40-4-212(1), MCA. Under § 40-4-219, MCA, and Marriage of Johnson, the jurisdictional prerequisites to modifying the 1990 custody decree clearly must be met in this case before a modification effectuating equal time custody can be made. Just as clearly, those prerequisites were not even considered by the District Court.

The Court follows the District Court’s lead in attempting to distinguish this case from Marriage of Johnson by relying on the fact that the District Court “contemplated” a future equal time custody arrangement back in 1990. It quotes at length from the District Court’s Finding of Fact Number 11 to that effect. “Contemplating” something which might occur a number of years in the future cannot be said— even as a matter of logic — to “determine custody” for that future time. Indeed, such a “contemplation” cannot constitute a “custody determination” given the language in § 40-4-212, MCA. The same is true of any “goal” or “plan” contained in Finding of Fact Number 11.

Moreover, even if, at the time of the original decree, the District Court envisioned being able to make substantial changes in Ashley’s primary residence in the future on the basis of a “best interest” analysis, the law changed in that regard with our decision in Marriage of Johnson on August 12, 1994. Like this Court, the District Court was required to follow current law at the time of its 1995 decision changing Ashley’s physical custody to an equal time custodial arrangement.

The Court’s decision in this case gives district courts carte blanche to make “custody determinations” in derogation of the requirements of § 40-4-212, MCA. It also nullifies our effort in Marriage of Johnson to give meaning to the legislature’s requirements for modifying a prior custody decree. District courts are now authorized to include a variety of future-oriented provisions in original decrees to preempt the necessity of making an appropriate decision about modifying custody in the future under legislatively required, and Marriage of Johnson mandated, jurisdictional prerequisites. Stability and continuity in a child’s living arrangements will be precluded at the outset by “findings” which cannot properly be made at that time. I cannot agree.

I dissent.

JUSTICE NELSON joins in the foregoing dissent of Justice Karla M. Gray.