author: JUSTICE GRAY JUSTICE TRIEWEILER

text:
    PAT M. GOODOVER, Plaintiff and Respondent, v. LINDEY’S INC., and the ESTATE OF WILLIAM C. FORREST, deceased, and the unknown heirs and unknown devisees of any Defendant above-named who may be deceased; et al., Defendants and Appellants.
    No. 92-118.
    Submitted on Briefs September 24, 1992.
    Rehearing Denied January 7, 1993.
    Decided December 10, 1992.
    49 St.Rep. 1059.
    255 Mont. 430.
    843 P.2d 765.

      For Appellants: Paul Neal Cooley, Skelton & Cooley, Missoula.
    For Respondent: John Larson, Missoula, and Jerome T. Loendorf, Harrison, Loendorf & Poston, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Appellant Lindey’s, Inc. appeals from an order of the District Court of the Fourth Judicial District, Missoula County, awarding damages for loss of use of property, supplemental relief, costs and attorney’s fees. Lindey’s also appeals from a subsequent order setting the amount of attorney’s fees and costs. We affirm in part and reverse in part.

Appellant presents fourteen issues on appeal. We consolidate these issues as follows:

1. ) Did the District Court err in denying Lindey’s request for a jury trial on the issue of damages?

2. ) Did the District Court err in its award of damages to enforce the 1987 determination of the boundary between Lots 1 and 2?

3. ) Did the District Court err in ordering Lindey’s to pay for the transcription of a video-taped deposition?

4. ) Did the District Court err in admitting hearsay evidence of a reduction in the taxable value of Goodover’s property?

5. ) Can Lindey’s raise issues that were raised or should have been raised in an earlier appeal?

6. ) Did the District Court err in awarding costs to Goodover?

7. ) Did the District Court err in awarding attorney’s fees to Goodover?

The case before us is the third appeal stemming from a protracted and bitter boundary dispute between two property owners in Seeley Lake. The facts regarding the earlier stages of the litigation are detailed in Goodover v. Lindey’s, Inc. (1988), 232 Mont. 302, 757 P.2d 1290 [Goodover I] and Goodover v. Lindey’s, Inc. (1990), 246 Mont. 80, 802 P.2d 1258 [Goodover II]. Additional facts will be set forth as appropriate in the discussion of the issues. Briefly, respondent Pat M. Goodover (Goodover) owns Lot 2 of the Seeley Lake Shore Sites in Missoula County. Appellant Lindey’s, Inc., (Lindey’s) owns adjoining Lot 1. In 1984, Goodover filed an action for quiet title and declaratory judgment to locate the disputed northeast comer marker of the lots. After a bench trial in 1987, the District Court issued findings of fact, conclusions of law and judgment which established the boundary line. The court also bifurcated the issue of damages for later determination. This Court affirmed in Goodover I. Shortly before the 1987 trial, Lindey’s constructed a restroom facility and installed two -underground fuel storage tanks in the disputed area. After we affirmed the boundary determination, it was clear that the restroom and a fence encroached on Goodover’s property; although the storage tanks lay below the surface, the position of the air vents indicated an additional encroachment.

After failed negotiations to remove the encroachments, Goodover moved the court for an order requiring Lindey’s to show cause why it should not be compelled to remove the encroachment. Following a hearing, the District Court ordered Lindey’s to move the restroom at least three feet from the boundary and to locate the underground storage tanks. It also expressly reserved jurisdiction over the issue of damages. Lindey’s appealed the District Court’s jurisdiction to fashion such supplemental relief. The District Court established a $5,000 bond on appeal to satisfy any damages resulting from Lindey’s encroachments.

On December 18, 1990, this Court affirmed the District Court’s decision on supplemental relief in Goodover II. After the parties received that decision, Goodover promptly filed a motion for forfeiture of the appeal bond.

In March of 1991, the District Court ordered Lindey’s to submit a work plan detailing the removal of the restroom and the location of the underground storage tanks and set a July 20,1991, deadline for all work to be completed. Lindey’s submitted a report locating the tanks, finding them within three feet of the established boundary. On July 24, 1991, Lindey’s moved the restroom, but left the concrete foundation encroaching on Goodover’s property.

After numerous continuances, the District Court held a hearing on damages on August 2, 1991. On August 5, 1991, Goodover filed a petition for removal of the tanks, asserting that although they did not lie on Goodover’s property, they violated local fire codes requiring underground storage tanks to be set back three feet from any boundary. On January 2, 1992, the District Court entered findings of fact, conclusions of law and order on damages. Finally, on February 25, 1992, the District Court ordered Lindey’s to pay Goodover $10,761.86 in attorney’s fees and $524.45 in costs. Lindey’s appeals from both orders.

I.

Did the District Court err in denying Lindey’s request for a jury trial on the issue of damages?

Goodover initially filed an action for quiet title and declaratory judgment to locate the boundary between the lots. In his second amended complaint, Goodover added a prayer for damages of $500. In answering the second amended complaint on July 30, 1985, Lindey’s did not request a jury trial. Instead, it requested a jury trial in its response to Goodover’s motion to forfeit the appeal bond on January 25, 1991, nearly six years later. The District Court denied Lindey’s request for a jury trial.

Lindey’s argues that because Goodover’s second amended complaint did not pray for damages over $500 (as were eventually awarded), it had no notice of the potential for larger damages. Therefore, it argues that it was unaware of the need to request a jury trial in its answer to the second amended complaint, in violation of its due process rights. We disagree.

Although Lindey’s claims it had no notice of the potential for greater damages, each count of the second amended complaint contains a request for “such other and further relief as the court may seem [sic] appropriate.” Furthermore, Lindey’s cites no authority for its argument. Rule 38(b) of the Montana Rules of Civil Procedure clearly provides:

Any party may demand a trial by jury of any issue triable by right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue.

Lindey’s should have demanded a jury trial in its answer to the second amended complaint. Failure to serve this demand constitutes a waiver of trial by jury. Rule 38(d), M.R.Civ.R Lindey’s waived its right to a jury trial by failing to comply with the requirements of Rule 38(b).

Lindey’s also argues that Goodover should have been required to amend his complaint to request larger damages, thereby giving Lindey’s the opportunity to request a jury trial. This argument is without merit, because even if Goodover had amended the complaint to include a request for more money damages and coercive relief, Lindey’s previous waiver of a trial by jury would not have been revoked. Rule 38(d), M.R.Civ.R, provides in pertinent part:

A waiver of trial by jury is not revoked by an amendment of a pleading asserting only a claim or defense arising out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.

Each damage claim that Lindey’s finds objectionable arose out of the same occurrence in the second amended complaint, the disputed boundary between Lots 1 and 2. The District Court did not err in denying Lindey’s untimely motion for a trial by jury.

II.

Did the District Court err in its award of damages to enforce the 1987 determination of the boundary between Lots 1 and 2?

At the hearing on damages, Goodover called Ken Hayes, an area realtor, to testify as an expert witness. Hayes testified that the value of Goodover’s lot was $100,000 and the rental value of the lot during the rental season was $350 per week. He also testified that the presence of the encroachments decreased the value of the lot by 10 to 20%.

Goodover testified that the value of his property ranged from $150,000 to $175,000. Goodover also testified that the County Tax Appeals Board had reduced his appraised property value by $10,000 due to the ongoing litigation.

Lindey’s real estate expert, Jeff Macon, testified that an undeveloped campsite in the Seeley Lake area rented for $160 per month, but acknowledged that a lot with amenities similar to Goodover’s would yield higher rentals. He also testified that the encroachments would not have a substantial effect on sales price. Clarence Rich, a Seeley Lake real estate agent, also testified for Lindey’s. He testified that the underground tanks would increase the sales value of adjacent property. He admitted, however, that his experience with such appreciation occurred fifteen years ago.

Michael Pat Goodover, Jr., Goodover’s son, also testified as an expert realtor. As a member of the Montana Association of Realtors Risk Reduction Task Force, he concluded that the underground storage tanks decreased the sales value of the adjacent lot.

The District Court determined that the reasonable rental value of Goodover’s property was $350 per week and that the encroachments caused a 10% reduction in the value of the lot. Therefore, the court calculated that 10% of $350 yielded damages of $35 per week for loss of use of property. The court awarded $35 per week from August 1986 through August 1991, arriving at a total damage award of $9,100 for loss of use of property, and ordered $2,540 of that amount forfeited from the appeal bond. The court also awarded $500 in supplemental relief for the fire code violation and $350 per week coercive damages for every week the encroachments remained on the property after the July 20, 1991, deadline for removal.

Lindey’s raises a profusion of related arguments concerning the District Court’s determination and computation of damages. Specifically, Lindey’s claims that the District Corut erred in awarding damages in excess of those in the complaint and supplemental petition, that it admitted and relied on expert testimony in error, and that it erroneously computed the damages. We address these three claims individually.

First, Lindey’s claims that the District Court erred in awarding damages beyond those requested in the second amended complaint and the petition for supplemental relief, thereby denying it “fair notice” of Goodover’s damages. This argument is without merit. Goodover brought this action to quiet title and for declaratory relief. The Uniform Declaratory Judgments Act provides for supplemental relief to enforce a declaratory judgment. Section 27-8-313, MCA, reads:

Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by a declaratory judgment or decree to show cause why further relief should not be granted forthwith.

In this case, Goodover filed a motion to show cause, requesting the court to order Lindey’s to remove the encroachments. Lindey’s concedes that this motion served as a supplemental petition under Section 27-8-313, MCA. The District Court issued the order to show cause pursuant to the statute and held a hearing. In a corrective order issued after the hearing, the District Court expressly reserved continuing jurisdiction over the issue of damages. As we said in Goodover II, this statute enables the district court to retain jurisdiction and grant further relief as it deems necessary and proper to enforce the declaratory judgment. 246 Mont. at 82, 802 P.2d at 1260 (emphasis added). We held that in fashioning the remedy, the court is not bound by relief requested in the complaint but may order any relief needed to effectuate the judgment. Id. In this case, the District Court retained jurisdiction to grant relief necessary to enforce its judgment under the Uniform Declaratory Judgments Act and its earlier orders. The District Court correctly determined that monetary damages and coercive relief were necessary to provide complete relief to Goodover.

Furthermore, Rule 54(c), M.R.Civ.P., states that every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings. Goodover’s failure to request specific money damages or coercive damages does not hinder the District Court’s ability to order any relief necessary to effectuate its judgment. We hold that the District Court did not err in awarding damages in excess of those requested in the complaint and petition for supplemental relief.

Second, Lindey’s objects to the expert testimony relied on by the District Court in computing damages. Lindey’s claims that Goodover’s expert, Hayes, was not qualified as an expert and should not have been allowed to testify about property values. The trial court’s determination that a witness is qualified to testify as an expert will not be disturbed absent a showing of abuse. Price Bldg. Service Inc. v. Christensen (1985), 215 Mont. 372, 375, 697 P.2d 1344, 1346. Hayes was a licensed realtor with over fifteen years’ experience in selling and renting property in Missoula County. The District Court did not abuse its discretion in allowing Hayes to testify as an expert.

Lindey’s further argues that the trial court erred in choosing Hayes’ valuation over those of its experts, Macon and Rich. The trial court is free to select and reject appraisal values, so long as there is substantial credible evidence in support of the value selected. In re Marriage of Williams (1986), 220 Mont. 232, 242, 714 P.2d 548, 554 (citations omitted). In this case, Hayes’ testimony provided substantial credible evidence to support the court’s valuations. We hold that the District Court did not err in adopting the values testified to by Hayes.

Third, Lindey’s challenges the amount of damages awarded for loss of use of property, coercive relief, and the fire code violation. Lindey’s begins by arguing that the District Court erred in computing the damages for loss of use of property. The detriment caused by the wrongful occupation of real property is deemed to be the value of the use of the property for the time of such occupation. Section 27-1-318, MCA. Reasonable rental value is a proper estimation of the value of use of property. Smithers v. Hagerman (1990), 244 Mont. 182, 191, 797 P.2d 177, 183; Pritchard Petroleum Co. v. Farmers Co-Op (1947), 121 Mont. 1, 7, 190 P.2d 55, 58. Lindey’s argues that the District Court should have taken into account the appreciation of the property during litigation when determining reasonable rental value. Lindey’s cites no authority for its position and, in any event, presented no evidence on the effect of appreciation on rental value. The District Court did not err in its computation of reasonable rental value of the property encroached upon by Lindey’s.

Lindey’s additionally argues that the District Court should not have awarded damages for loss of use for the winter months because Goodover did not use the property in the winter. Therefore, Lindey’s contends, the court could not have attributed any damages to the appeal bond prior to the second appeal because that period of time fell during the winter. Based on Hayes’ testimony, Lindey’s asserts that Goodover used his property for only fourteen weeks in the summer of 1990. The transcript reads:

Q Now what is the rental season up in Seeley Lake, generally speaking?
A From May through September.
Q Okay. And approximately how many weeks per summer if you —
A Probably about 14 weeks would be prime time.

Hayes’ testimony does not support Lindey’s factual contention. Rather, it refers to rental property in Seeley Lake in general, not Goodover’s property in 1990; it also refers to “prime time” rental season only.

Moreover, the encroachments continued year-round. Section 27-1-318, MCA, authorizes damages for the wrongful occupation of property for the time of the wrongful occupation. The District Court did not err in applying the reasonable rental figure to each week the encroachments existed.

Lindey’s argues that the amount of coercive damages the District Court awarded to Goodover was in error. As discussed in Goodover II, coercive damages are a proper tool to enforce a declaratory judgment. 246 Mont. at 82, 802 P.2d at 1260. Here, the coercive damages managed to accomplish what five years of litigation could not — remove the encroachments. The District Court did not err in awarding $350 per week for every week the encroachments remained on Goodover’s property.

Finally, Lindey’s claims that by awarding $500 in supplemental relief for the fire code violation and $35 per week for loss of use of property, the District Court put Lindey’s in “double jeopardy.” We disagree. We note initially that double jeopardy is a term of art not applicable to a civil proceeding. We assume Lindey’s is arguing that the court awarded double damages for the same violation. That is not the case here.

The District Court computed the award of $35 per week by figuring the loss of use of property caused by the encroachments over the five year period. The court also awarded $500 in supplemental relief for the fire code violation in lieu of removing the underground storage tanks. The underground tanks posed possible environmental and fire hazards that affected the property value separately and distinctly; Hayes, Rich and Goodover, Jr. all testified as to the impact of the storage tanks on the value of the real estate. The court is not bound by the opinion of a particular party or expert but remains free to adopt any reasonable valuation that is supported by the record. In re Marriage of Dzivi (1991), 247 Mont. 165, 167, 805 P.2d 567, 568. The District Court did not err in awarding a separate $500 damage award for the underground storage tanks.

In sum, the District Court made extensive findings of fact regarding damages and how they were computed. These findings are not clearly erroneous under the three-part “clearly erroneous” test we enunciated in Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. First, the testimony of Hayes, Goodover, Rich and Goodover, Jr. provides substantial credible evidence supporting the District Court’s valuations. In addition, the District Court did not misapprehend the effect of the evidence. Finally, we are not left with a definite and firm conviction that a mistake has been made. We hold that the District Court did not err in its determination and award of damages.

III.

Did the District Court err in ordering Lindey’s to pay for the transcription of a video-taped deposition?

Gary Johnson testified for Lindey’s at a hearing on March 14,1991. He was unable to complete his testimony that day and the parties agreed to a perpetuation deposition pursuant to Rule 30, M.R.Civ.P., to allow Johnson to complete his testimony. The deposition was taken a few days later. Goodover subsequently moved the court to order Lindey’s to provide a written transcript of the video-taped deposition; the District Court granted the motion on April 8,1991. Lindey’s filed its objection to Goodover’s motion on April 10, 1991. Lindey’s now argues that the District Court violated Rule 2 of the Uniform District Court Rules in issuing the order.

Rule 30(h)(1)(c), M.R.Civ.P., specifically allows the court, upon motion for good cause, to order the party who took the video deposition to furnish a transcript of that deposition at that party’s expense. The expert testified on Lindey’s behalf, and Lindey’s took the deposition for the convenience of its expert. Also, Lindey’s original objection to Goodover’s motion was not based on an asserted violation of U.D.C.R. 2. This Court will not address on appeal an issue not presented to the district court. Wyman v. DuBray Land Realty (1988), 231 Mont. 294, 299, 752 P.2d 196, 200. The District Court did not err in ordering Lindey’s to pay for the transcription of Gary Johnson’s video-taped deposition.

IV

Did the District Court err in admitting hearsay evidence of a reduction in the taxable value of Goodover’s property?

Lindey’s claims that the District Court erred by allowing Goodover to testify to inadmissible hearsay. When asked whether he had approached the local County Tax Appeal Board about the value of his lot, Goodover responded “[t]he Tax Appeal Board ruled during the legislation [sic], the legal involvement, they would reduce my property taxation value by $10,000.00.” Lindey’s objected that the answer required hearsay, and the District Court overruled the objection.

Under Rule 801 of the Montana Rules of Evidence, hearsay is defined as a statement other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Rule 602, M.R.Evid., states:

A witness may not testify as to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony.

The term “hearsay,” as used in the law of evidence, signifies all evidence which is not founded upon the personal knowledge of the witness from whom it is elicited. State v. Sharbono (1977), 175 Mont. 373, 387, 563 P.2d 61, 69, quoting State v. Crean (1911), 43 Mont. 47, 59, 114 P. 603, 607. Goodover’s testimony established his personal knowledge of the reduction. He personally participated in the tax reduction proceeding and has first-hand knowledge of the reduction in the taxable value of his property. Therefore, his testimony does not constitute hearsay. We hold that the District Court did not admit hearsay evidence of the reduction in the taxable value of Goodover’s property.

V.

Can Lindey’s raise issues that were raised or should have been raised in an earlier appeal?

Lindey’s claims the District Court’s Conclusion of Law XIII is not supported by the record. The conclusion reads:

Current Fire Marshall regulations in effect since 1985, require a set back of at least three feet from property boundaries for underground fuel storage tanks. (Source, Uniform Fire Code 79.601(a), Testimony of Sisk.)

This Conclusion of Law is a verbatim repetition of Conclusion of Law VIII in the District Court’s February 23, 1990 order appealed to this Court in Goodover II. Having failed to raise the issue in Goodover II, Lindey’s cannot now raise the sufficiency of the evidence to support this conclusion. Downs v. Smyk (1982), 200 Mont. 334, 343, 651 P.2d 1238, 1242.

Similarly, Lindey’s attempts to resurrect the argument that the equitable doctrine of laches should defeat Goodover’s claim of encroachment. As Goodover points out, a careful look at Lindey’s appellate brief in Goodover II reveals the same argument. We stated in Goodover IT.

Lindey’s raises a myriad of issues in an attempt to relitigate the boundary-line question. We refuse to examine these arguments, however, because the boundary-line issue was reviewed and finally decided during the first appeal to this Court. The District Court’s determination of the boundary line is thus res judicata and cannot be reconsidered on this appeal.

246 Mont. at 82, 802 P.2d at 1260. Lindey’s again argues that Goodover’s alleged delay in acquiring a survey should bar the claim of encroachment. This argument has no more merit now than it did when Lindey’s raised it in Goodover II. All issues relating to the boundary and the encroachments are res judicata.

VI.

Did the District Court err in awarding costs to Goodover?

Lindey’s makes several objections to the bill of costs submitted by Goodover and approved by the District Court. Lindey’s claims the District Court erred by awarding $570 to Goodover for expert witness fees. We agree.

Legal fees of witnesses, plus mileage, are allowable statutory costs under Section 25-10-201, MCA. By statute, an expert witness is a witness and receives the same compensation as a witness. Section 26-2-505, MCA. The statutory witness fee in a civil case is limited to $10 per day. Section 26-2-501, MCA. A party may pay an expert witness any fee he or she chooses, but a district court cannot award costs in excess of $10 per day per witness. Witty v. Pluid (1986), 220 Mont. 272, 274, 714 P.2d 169, 171. From our review of the record of the hearing, Hayes, Gregory Martinsen and Goodover, Jr., each testified one day for Goodover; thus, the total witness fee awardable as costs for those witnesses is $30. We hold that the District Court erred in the amount of witness fees awarded as costs to Goodover.

Lindey’s also asserts that the District Court erroneously awarded Goodover the costs of the survey used to prepare the map that located the storage tanks. We disagree. This map was introduced through Goodover’s expert Martinsen as Plaintiff’s Exhibit 1. Under Section 25-10-201(8), MCA, reasonable expenses for making maps are allowed if required and necessary for use at trial or hearing. Lindey’s claims that Goodover’s exhibit was not necessary because Lindey’s submitted a report locating the tanks in July. However, Goodover’s survey is more detailed than, and different in result from, Lindey’s report. Expenses incurred in preparing maps for the express purpose of explaining the factual situation to the court are allowed as recoverable costs. Funk v. Robbin (1984), 212 Mont. 437, 449, 689 P.2d 1215, 1222. The District Court did not err in awarding Goodover $524.45 in costs for reasonable expenses in preparing the map.

VII.

Did the District Court err in awarding attorney’s fees to Goodover?

Lindey’s argues that the District Court erred in awarding Goodover attorneys fees. We agree.

To support its award of attorneys fees, the District Court made the following findings of fact in its January 2, 1992, order:

[XXXI] Beginning with the hearings held on supplementary relief, counsel for Lindey’s, Inc., has attempted to interject the relitigation of the original boundary issue, exhibits related to the relitigation of the boundary issue, and other extraneous matters rather than to address the issues before the Court. Again, based on this Court’s extensive experience as a Trial Judge, these efforts were transparent attempts to vex, obstruct, and delay the proceedings in this case.
[XXXII] On April 8,1991, this Court issued an Order requiring the transcription of a deposition of one of Lindeys, experts. The strategy employed by Lindey’s, Inc., and its counsel to delay and vex compliance with this valid Court Order are as follows:
A. Telling the private Court Reporter who reported at this deposition that they would not guarantee payment.
B. Filing a premature Writ of Certiorari to the Montana Supreme Court which was dismissed.
C. Maintaining that while they did not possess the tape, they had not lost the video tape which the Court Reporter’s notes indicated had been delivered to them ... and which the Court records indicate had never been filed.
D. Only agreeing to guarantee payment for the video tape after a Rule 37(b) Motion had been filed by Plaintiff’s counsel and a hearing date set.
E. Finally acknowledging that the video tape was in the possession of Mr. Lindemer in late July 1991.
F. The deposition was finally transcribed on July 31, 1991. A delay caused exclusively by Lindey’s actions of approximately four months.
G. These actions by Lindey’s, Inc., have also delayed the determination of the Contempt Issue which was submitted to this Court on June 14, 1991, but couldn’t be decided until the transcript was prepared.
[XXXV] Based on the slow progress made in this case, due in large measure to Defendant Lindey’s frequent attempts to relitigate this case, both at the District Court and Supreme Court level, the number of extraneous exhibits and issues which this Court often admitted over objection, despite their minimal relevance, materiality and/or weight, the Court finds that in this particular case, the exercise of its equitable powers to award the Plaintiff its reasonable attorney's fees is justified.
[XXXVI] Such actions by Lindey’s during the pendency of boundary litigation and its subsequent refusal to move the encroachments even after the boundary dispute was resolved are actions taken in bad faith and with malice and are the factual basis for the Court’s award of attorney’s fees to Plaintiff.

The District Court concluded that these factual circumstances justified the exercise of its equitable powers and awarded Goodover reasonable attorney’s fees.

The longstanding rule in Montana is that, absent statutory or contractual authority, attorney’s fees will not be awarded. Bitney v. School Dist. No. 44 (1975), 167 Mont. 129, 137, 535 P.2d 1273, 1277; Ehly v. Cady (1984), 212 Mont. 82, 100, 687 P.2d 687, 696; Joseph Russell Realty Co. v. Kenneally (1980), 185 Mont. 496, 505, 605 P.2d 1107, 1112. This rule, also called the American Rule, prohibits fee shifting in most cases. Alyeska Pipeline Service Co. v. Wilderness Society (1975), 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141, 147. The District Court did not rely on any statute or rule of civil procedure in its award of attorney's fees. Instead, the District Court first relied on a United States Supreme Court decision that discussed the powers of the federal district court to assess attorney’s fees as an appropriate sanction under the “bad faith” exception to the general rule. The District Court then concluded that its general equity power to make a party whole in some cases included the right to award attorney’s fees, and that Lindey’s bad faith and malicious behavior towards Goodover merited such an award.

In isolated instances, a district court may award attorney’s fees to make an injured party whole under its equity powers. Foy v. Anderson (1978), 176 Mont 507, 511-12, 580 P.2d 114, 116-17; Holmstrom Land Co. v. Hunter (1979), 182 Mont. 43, 48-49, 595 P.2d 360, 363; Stickney v. State, County of Missoula (1981), 195 Mont. 415, 418, 636 P.2d 860, 862. We have invoked the “equitable” exception to the general rule infrequently, however, and only in cases with particularly limited facts.

In Foy, Eggan and Foy were passengers in a car struck from the rear by Anderson. Eggan sustained only minor injuries and did not file a claim against Anderson. Anderson filed a declaratory action against his insurer and sought to bring in Eggan as a third party, alleging that Eggan had asserted a claim against him. We held that because Eggan asserted no claim against Anderson, and she was forced to hire an attorney to write and argue her motion to dismiss through no fault of her own, she would not be made whole without an award of attorney’s fees. 176 Mont. at 512, 580 P.2d at 117.

In Holmstrom, the district court issued an order to the water commissioner, defendant Hunter, to charge all water flowing from Newlan Creek to Holmstrom. Holmstrom refused to pay and Hunter padlocked his headgates. Holmstrom then brought a civil action against Hunter. We held that Hunter acted pursuant to a court order, was forced to retain counsel, and as a matter of equity required an award of attorney’s fees. 182 Mont. at 48, 595 P.2d at 363. We reasoned that if water commissioners were required to defend suits out of their personal funds for suits brought against them for their official acts, no one would be willing to serve as a water commissioner. Comparing the case to Foy, we stated, “[j]ust as Anderson had no reason or justification for dragging Eggan into the lawsuit ..., Holmstrom had no reason to sue Hunter.” 182 Mont. at 49, 595 P.2d at 363. Again, this award of attorney’s fees was based on our inherent equitable power to grant the relief that justice requires.

We applied the Foy exception again in Stickney with similar limitations. In Stickney, Justice of the Peace Jensen asked several spectators in her courtroom to leave before a trial, they refused, and she found them in contempt. 195 Mont. at 416, 636 P.2d at 861. The spectators sued Jensen in her personal capacity for official misconduct in office. We held that the facts as pleaded presented no basis for personal liability, therefore the attorney’s fees awarded by the district court were proper. As in Foy, Jensen was forced to personally defend against a frivolous action through no fault of her own. 195 Mont. at 418, 636 P.2d at 862.

This equitable exception to the general rule is available in those unique factual situations in which a party is forced into a frivolous lawsuit and must incur attorney’s fees to dismiss the claim. In such cases, equity requires an award of attorney’s fees to “make the party whole.” We have rejected many efforts to expand the limited application of Foy and its progeny. Indeed, two months after the Foy decision, we sharply limited its applicability in Masonovich v. School District No. 1 (1978), 178 Mont. 138, 582 P.2d 1234.

The plaintiff in Masonovich obtained a preliminary injunction against the defendants and included attorney’s fees in his memorandum of costs. We distinguished Foy, stating:

In the instant case the plaintiff’s position is entirely different from the third party defendant’s position in Foy. Here, plaintiff obtained an attorney to institute legal action. He did not obtain an attorney to help him defend against a claim against him as in Foy. Plaintiff freely chose to obtain the services of a private attorney to institute a suit against others ....Foy is distinguishable on this basis and is not controlling in this case.

178 Mont. at 141, 582 P.2d at 1236 (emphasis added). Goodover’s position as the plaintiff in this litigation, as we explained in Masonovich, normally will preclude an award of attorney’s fees under Foy.

We again explained the distinguishing characteristics of Foy in State ex rel. Wilson. v. Dept. of Natural Resources (1982), 199 Mont. 189, 202, 648 P.2d 766, 772, stating:

The Foy exception has been narrowly drawn and is applicable only where the action into which the prevailing party has been forced is utterly without merit or frivolous.

Here, Goodover was not forced into wholly frivolous litigation through no fault of his own; he filed suit against Lindey’s. Furthermore, if the losing party had a reasonable basis to believe his cause might prevail, the Foy exception is inapplicable. Id. Lindey’s has prevailed at various points in this litigation, and we did not determine its earlier appeals to be utterly without merit. Foy and its progeny are distinguishable from the present case and do not form a basis for an award of attorney’s fees.

In addition to the equitable exception invoked to make a party whole, some states and the federal courts have adopted a bad faith exception to the American Rule. See Chambers v. NASCO, Inc. (1991) _U.S._,_, 111 S.Ct. 2123, 2133, 115 L.Ed.2d 27, 45. Montana has not expressly adopted a malicious or bad faith equitable exception to the American Rule and we decline to do so at this time. In the present case, the District Court relied on Joseph Russell Realty Co. for the proposition that this Comb announced therein a “bad faith or malicious or fraudulent basis” for the award of attorneys fees. This reliance is misplaced.

In Joseph Russell Realty Co., the plaintiff argued that attorneys fees should be awarded when another’s fraudulent act is the cause of litigation, citing Home Ins. Co. v. Pinski Brothers, Inc. (1972), 160 Mont. 219, 500 P.2d 945. We stated that assuming this exception exists, it was not applicable to the facts in that case because the defendant had not acted fraudulently, maliciously or in bad faith. Joseph Russell Realty Co., 185 Mont. at 505, 605 P.2d at 1112.

Joseph Russell Realty Co. cited Home Ins. Co. for the possibility of a “fraudulent exception” to the American Rule but did not rely on or apply such an exception. In Home Ins. Co., this Court awarded attorney’s fees against an insurer based on its breach of its duty to defend an insured, not on a fraudulent exception to the American Rule. Home Ins. Co., 160 Mont. at 228, 500 P.2d at 950. Under the Home Ins. Co. rationale, we have steadfastly refused to extend this narrow exception beyond those cases in which an insurer breaches its duty to defend.

We recently refused to extend the Home Ins. Co. exception to cover the situation in which an insurer wrongfully refused to provide coverage to the insured. Yovish v. United Services Auto. Ass’n (1990), 243 Mont. 284, 291, 794 P.2d, 682, 686. Although the distinction between failing to defend and failing to provide coverage may be slight, we hesitated to expand the exception to the general rule without legislative authority. Id. Similarly, we will not expand the insurance exception to include the more general exception for bad faith and malice relied on by the District Court in this case. Montana’s statutes and Rules of Civil Procedure, together with the limited Foy exception, provide ample opportunity for awarding attorneys fees when a party or an attorney abuses the judicial system.

The District Court found that the slow progress in this litigation was due in large measure to Lindeys attempts to re-litigate the case both at the District Court and Montana Supreme Court levels. While this may be true to some extent, we did not determine Lindey’s earlier appeals to be wholly without merit. Nor do we agree that Lindey’s should shoulder all of the blame for this lengthy and bitter litigation. In any event, attorney’s fees were neither argued to, nor awarded by, the District Court under Section 37-61-421, MCA.

The awarding of attorney’s fees is within the discretionary power of the district court. Grenfell v. Duffy (1982), 198 Mont. 90, 96, 643 P.2d 1184, 1187. The general rule remains that attorney’s fees will not be awarded to the prevailing party absent statute or contract. This action presents neither a statutory nor a contractual basis for the award of attorney’s fees, nor does it fall within one of the narrow exceptions to the general rule recognized in Montana. Yovish, 243 Mont. at 290, 794 P.2d at 686. We hold, therefore, that the District Court abused its discretion in awarding attorney’s fees.

Affirmed in part, reversed in part and remanded for entry of judgment in accordance with this opinion.

JUSTICES HUNT, McDONOUGH and WEBER concur. CHIEF JUSTICE TURNAGE did not participate.

JUSTICE TRIEWEILER

concurring in part and dissenting in part.

I concur with the majority’s conclusions pertaining to Issues I through VI.

I dissent from the majority’s decision to reverse the District Court’s award of attorney fees. I would adopt an exception to the so-called “American Rule” by allowing District Courts to assess attorney fees when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. The basis for an award under such circumstances was set forth by the United States Supreme Court in Chambers v. Nasco, Inc. (1991), 111 S. Ct. 2123, 2133, 115 L. Ed. 2d 27, 45. That Court gave the following explanation with which I concur:

In this regard, if a court finds “that fraud has been practiced upon it, or that the very temple of justice has been defiled,” it may assess attorney’s fees against the responsible party, Universal Oil [Products Co. v. Root Refining Co. (1946), 328 U.S. 575,] 580, 90 L.Ed. 1447, 66 S.Ct. 1176, as it may when a party “shows bad faith by delaying or disrupting the litigation or by hampering enforcement of a court order,” Hutto [v. Finney (1978)], 437 U.S. [678], 689, n. 14, 57 L.Ed.2d 522, 98 S.Ct. 2565. The imposition of sanctions in this instance transcends a court’s equitable power concerning relations between the parties and reaches a court’s inherent power to police itself, thus serving the dual purpose of “vindicating] judicial authority without resort to the more drastic sanctions available for contempt of court and making] the prevailing party whole for expenses caused by his opponent’s obstinacy.”

Chambers, 111 S.Ct. at 2133, 5 L.Ed.2d at 46.

Based on this exception to the “American Rule” regarding assessment of attorney fees, I would affirm the District Court’s award.

JUSTICE HARRISON concurs in the foregoing concurrence and dissent of JUSTICE TRIEWEILER.


source: Caselaw Access Project

author: JUSTICE McDONOUGH

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MYRON CHRISTIAN LARSON, Defendant and Appellant.
    No. 92-197.
    Submitted on Briefs October 8, 1992.
    Decided December 15, 1992.
    49 St.Rep. 1077.
    255 Mont. 451.
    843 P.2d 777.

      For Appellant: William F. Hooks, Appellate Defender Office, Helena.
    For Respondent: Marc Racicot, Attorney General, George Schunk, Asst. Attorney General, and Mike McGrath, Lewis and Clark County Attorney, Helena.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from a judgment of the First Judicial District Court, Lewis and Clark County, convicting Larson of negligent endangerment in violation of Section 45-5-208, MCA. Affirmed.

The issues on appeal are:

1. Whether a trial judge may allow the prosecution to compare the blood alcohol level of a defendant in a non-DUI case with the blood alcohol level that the scientific community has determined will impair a person’s ability to drive an automobile.

2. Whether the jury heard sufficient evidence to find that Larson acted negligently.

On July 21,1991, five-year old Brenda Perry suffered fatal injuries when a horse she and Myron Larson were riding reared and fell backward, crushing Brenda. She died a short time later of internal bleeding.

The accident occurred during a barbecue at a rural home near Helena. Larson attended the barbecue with his son, his girlfriend Kate Perry, and Kate’s children. Brenda was one of Kate’s children.

Larson had consumed several alcoholic beverages that day. He testified that he drank four sixteen-ounce cans of beer and two shots of whiskey. The coroner, however, testified that Larson admitted to drinking six or seven cans of beer and two shots of whiskey.

Larson saw the hostess, Heidi St. Germaine, riding a horse named Taz and asked St. Germaine if he could ride the animal. Before St. Germaine allowed Larson to ride Taz, she gave him instructions on handling the horse. She told Larson that Taz was “inexperienced” and “hot-blooded.” She also told him that Taz did not like to have her mouth tugged by the reins.

Larson rode the horse for a while, then returned to talk to St. Germaine. Larson asked her if his son could go for a ride. St. Germaine testified that she told Larson she did not want children riding the horse. She also testified that she told him the horse did not like anything, even saddle bags, behind the saddle. Larson, on the other hand, testified that St. Germaine told him she did not want children on the horse alone. He also testified that she said nothing about riding double.

Moments later, Brenda said that she wanted a ride. Kate Perry, Brenda’s mother, lifted Brenda onto the horse. She grabbed Larson around the waist and gripped the horse’s flanks with her legs. The horse began to “crow-hop,” so Larson pulled back on the reins. The horse reared straight up and fell backward onto Larson and Brenda. A bystander rushed Brenda to the hospital, but she died of internal injuries.

At the hospital, law enforcement officers requested that Larson submit to a blood test, because a strong odor of alcoholic beverage emanated from his breath. Larson refused, stating either, “It’s obvious that I’ve been drinking” or, “Can’t you see I’m drunk.”

After the officers got a search warrant, a lab technician drew a blood sample from Larson. By then, over three hours had elapsed since the accident. Lynn Kurtz, a forensic scientist for the State Crime Lab, measured Larson’s blood alcohol content at .17 grams of alcohol per 100 milliliters of blood. Kurtz estimated that Larson had a blood alcohol content between .20 and .27 at the time of the accident.

At trial, Larson objected to any discussion of the statutory level of intoxication sufficient for an inference that a DUI defendant is under the influence of alcohol. The court sustained the objection.

The court, however, permitted Kurtz to compare Larson’s blood alcohol level with the level that the scientific community has determined will impair a person’s ability to drive a motor vehicle. Kurtz testified that the scientific community has determined that a blood alcohol level of .08 grams of alcohol per 100 milliliters of blood will impair a person’s ability to safely operate a motor vehicle.

In addition to the physical effects of alcohol, Kurtz testified concerning the effect of alcohol on a person’s reasoning and judgment. He said that a person with a blood alcohol level as low as .05 “will do stupid things.”

The prosecution argued that Larson made mistakes in judgment due to his alcohol consumption. In closing, the prosecution mentioned to the jury that Larson’s blood alcohol level at the time of the accident was three times the level that will impair a person’s ability to drive an automobile. The prosecution also argued that a person who is too impaired to drive an automobile safely is too impaired to ride a horse safely, and certainly is too impaired to allow a five-year old child on a high-spirited horse with him. The prosecution closed by stating:

[Ufs not a crime to put a child on a horse. That’s true. It’s not. It’s not a crime to drive an automobile. But had Myron Larson been .17, gets in a car, runs off the interstate, plows into another car and people are killed, we wouldn’t have any trouble with that. He would be held accountable for his own acts. I submit to you this is the same situation. He engaged in a course of conduct that created a substantial risk of death for this child. He should be held accountable.

The jury found Larson guilty of negligent endangerment in violation of Section 45-5-208, MCA. This appeal follows.

I.

May a trial judge allow the prosecution to compare the blood alcohol level of a defendant in a non-DUI case with the blood alcohol level that the scientific community has determined will impair a person’s ability to drive an automobile?

We have consistently held that a trial judge has great discretion in ruling on the admissibility of evidence. State v. Oman (1985), 218 Mont. 260, 263, 707 P.2d 1117, 1119 (citing cases). This Court will overturn a trial judge’s determination of the admissibility of evidence only for an abuse of discretion. Oman, 707 P.2d at 1119.

Larson contends that “blood alcohol standards, which establish whether a person is too impaired to drive safely, apply only in cases involving a charge of driving under the influence.” He reasons that a comparison between the blood alcohol level which impairs one’s ability to drive, and Larson’s blood alcohol level on the day of the accident is actually a “DUI-type presumption” in disguise.

To support his contention, Larson relies on cases concerning a statute that, at one time, created a presumption of intoxication if a DUI defendant had a certain blood alcohol level. See generally Section 61-8-401, MCA; State v. Morgan (1982), 198 Mont. 391, 646 P.2d 1177; State v. Leverett (1990), 245 Mont. 124, 799 P.2d 119. In Leverett, this Court held it was unconstitutional, thus reversible error, to give a jury instruction that raised a mandatory rebuttable presumption of an element essential to a criminal charge. 799 P.2d at 124. In Morgan, we noted that after a court has held that the jury would not be instructed on the presumed level of intoxication, a prosecutor should not refer to such a presumption. In that case, despite a pre-trial order forbidding it, the prosecutor repeatedly referred to the blood alcohol level that gave rise to a presumption of intoxication. Morgan, 646 P.2d at 1181-82.

Neither case applies to the case at hand. Montana’s statute no longer mandates a presumption that a DUI defendant with a certain blood alcohol content is intoxicated. Rather, it allows the trier of fact to infer that a person with a certain blood alcohol level is under the influence of alcohol for purposes of the DUI law. See Section 61-8-401(4)(c), MCA. The prosecution did not mention the contents of the statute after the court sustained Larson’s objection to any mention of the statute. Therefore, Larson’s contention that a comparison of a non-DUI defendant’s blood alcohol level with the level which will impair a driver is actually a “DUI-type presumption” is unfounded.

Larson also contends that the level of blood alcohol which will impair a person’s ability to drive is irrelevant to his conduct relative to a high-spirited young horse. On the contrary, “[rjelevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 401, M.R.Evid.

The test of relevance is whether an item of evidence will have any value, as determined by logic and experience, in proving the proposition for which it is offered. The standard used to measure this acceptable probative value is ‘any tendency to make the existence of any fact... more probable or less probable than it would be without the evidence’.

State v. Fitzpatrick (1980), 186 Mont. 187, 207, 606 P.2d 1343, 1354 (quoting M.R.Evid. Commission Comments).

At Larson’s trial, the prosecution offered his blood alcohol level to show that alcohol had impaired his reactions and judgment when he chose to ride double on a high-spirited horse with a young girl. Larson’s blood alcohol level on the day of the accident is relevant.

The comparison of Larson’s blood alcohol level with that which the scientific community has determined will impair a person’s ability to drive a motor vehicle is also relevant. The comparison aided the jury in evaluating Larson’s level of intoxication. It allowed the jurors to apply their experience and logic to determine whether Larson’s level of intoxication clouded his judgment and impaired his reactions, and its probative value outweighs any prejudice to the defendant. We hold that the court did not abuse its discretion in admitting the comparison.

II.

Did the jury hear sufficient evidence to find that Larson acted negligently?

When reviewing whether evidence was sufficient to support a criminal conviction, this Court views the facts in a light most favorable to the prosecution. The standard of review is whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. McLain (1991), 249 Mont. 242, 246, 815 P.2d 147, 150; See also, Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

The jury convicted Larson of negligent endangerment. This required a finding that Larson negligently engaged in conduct which created a substantial risk of death or serious bodily injury to another. See Section 45-5-208, MCA. Larson contends that his conduct did not amount to criminal negligence.

Criminal negligence is defined as follows:

[A] person acts negligently with respect to a result or to a circumstance described by a statute defining an offense ... when he disregards a risk of which he should be aware that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. “Gross deviation” means a deviation that is considerably greater than lack of ordinary care.

Section 45-2-101(37), MCA.

At trial, the jury heard evidence that a blood alcohol level of .05 begins to affect a person’s reasoning and judgment. The scientific community has determined that a blood alcohol level of .08 will affect a person’s reactions and judgment to the point of impairing the person’s ability to safely operate a motor vehicle.

Shortly before the accident Larson had consumed at least four cans of beer and two shots of whiskey. His blood alcohol level at the time of the accident was at least .17, and likely much higher.

In that condition, Larson mounted a horse described to him by the owner as “hot-blooded” and “inexperienced.” The owner of the horse had warned him not to tug back on the reins and not to give rides to children. Yet, Larson allowed a five-year old child on the horse with him. When the horse began to jump, Larson reined the horse back. The animal fell over backward, fatally crushing the child.

Upon these facts, a rational jury could find that Larson’s conduct amounted to a gross deviation from the ordinary care that a reasonable person would observe in a similar situation. We hold that the jury was justified in finding beyond a reasonable doubt that Larson acted negligently. Affirmed.

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


author: JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF WILLO B. PETRANEK, n/k/a STREET, Petitioner and Respondent, and THOMAS B. PETRANEK, Respondent and Appellant.
    No. 92-154.
    Submitted on Briefs July 2, 1992.
    Decided December 17, 1992.
    49 St.Rep. 1107.
    255 Mont. 458.
    843 P.2d 784.

      For Appellant: Jack R. Stone, Lewistown.
    For Respondent: James D. Elshoff, Great Falls.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Respondent Willo B. Petranek, now known as Willo B. Street, filed a motion for child support arrears on September 10, 1991, seeking enforcement of the parties’ 1981 divorce decree. Following a January 24, 1992, hearing, the District Court for the Tenth Judicial District, Fergus County, found that appellant Thomas B. Petranek owed arrears and interest in the amount of $12,919.50 which had accrued from December 1982 through March 1992. From that judgment, Thomas appeals. We affirm.

The sole issue for our consideration is whether the District Court abused its discretion by concluding that its 1982 decree entered pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA) did not modify the child support obligation imposed in the couple’s original Decree of Dissolution.

On March 6, 1981, Willo petitioned for dissolution of marriage in Fergus County Cause No. 24770. District Court Judge LeRoy Mc-Kinnon dissolved Willo’s and Thomas’s marriage on July 28, 1981, and awarded Willo custody of Joesanha, the couple’s 21/2-year-old child. Thomas was ordered to pay child support in the amount of $225 per month until Joesanha reached 18 years of age or graduated from high school.

Thomas paid that amount through 1981, but became delinquent in 1982 after Willo and Joesanha moved to Washington state. In November 1982, Willo commenced an action under URESA in the Fergus County District Court, under Cause No. 25137, to recover the delinquencies. Neither party petitioned for a modification of the support provisions contained in the divorce decree; the URESA action was initiated to enforce Thomas’s existing support obligation.

In an order signed December 6, 1982, pursuant to the URESA action, Judge McKinnon ordered Thomas to pay $130 per month until Joesanha’s emancipation, or farther order of the court. The URESA order made no reference to the underlying divorce decree or the support order under Cause No. 24770.

Thomas has since made monthly payments of $130, which were credited toward URESA Cause No. 25137 and transferred to the Clerk of Superior Court in Pullman, Washington, for payment to Willo.

In September 1991, Willo brought an action in the Fergus County District Court alleging that Thomas has not satisfied his original $225 monthly support obligations. Willo claimed that Judge McKinnon’s URESA order, while requiring payments of $130 per month, had not modified the support provisions of the original divorce decree. The District Court, under Judge Peter Rapkoch, agreed with Willo, and awarded a judgment of $12,919.50 for past due child support and interest through March 1992. Notice of entry of judgment was filed on April 12, 1992. Thomas appeals.

Thomas concedes that the law is well settled in this area but advocates the application of equitable principles.

Section 40-4-208, MCA, sets forth the requirements for court modification of a support decree, and provides that a dissolution decree can be modified “only as to installments accruing subsequent to actual notice to the parties of a motion for modification.” (Emphasis added.) We have consistently interpreted the statutes in the child support area very strictly, as evidenced by our recent holding in In re the Marriage of Durbin (1991), 251 Mont. 51, 823 P.2d 243. In that case, we pointed out that a child support provision in a divorce decree cannot be modified absent a motion under Section 40-4-208, MCA. Durbin exemplifies our reluctance to waive, or loosely construe, statutory requirements in this area. We held that even the receipt of Social Security benefits on behalf of the child did not justify an equitable modification of a support obligation, absent a court order to modify under Section 40-4-208, MCA.

There is no evidence that either Willo or Thomas ever sought modification of the original divorce decree by a motion under Section 40-4-208, MCA, and there has never been a court order pursuant to Cause No. 24770 modifying the original order. Consequently, we conclude there has been no modification of Thomas’s $225 per month support obligation entered in 1981 under Cause No. 24770.

Thomas contends that the URESA action modified the original obligation, and that he relied in good faith on this modification since 1982.

The Uniform Reciprocal Enforcement of Support Act was adopted by Montana in 1961 to provide an auxiliary or supplemental remedy for the enforcement of support orders. While a court in a URESA proceeding looks to the ability of the obligor to pay at the time of the enforcement proceeding, the authority of the court originally ordering payment in not affected. Nor is its order modified by an order of a court fixing another or different sum pursuant to the URESA action. Despain v. Despain (Idaho 1956), 300 P.2d 500 (cited with approval in Howard v. Howard (Miss. 1966), 191 So.2d 528; Oglesby v. Oglesby (Utah 1973), 510 P.2d 1106).

Section 40-5-132, MCA, which codifies URESA, provides that:

A support order made by a court of this state pursuant to this part [URESA] does not nullify and is not nullified by a support order made by a court of this state pursuant to any other law ... unless otherwise specifically provided by the court.

We held in Campbell v. Jenne (1977), 172 Mont. 219, 223, 563 P.2d 574, 577, that URESA support orders which do not reference prior support awards do not modify them. Furthermore, under Montana law, we have clearly stated that child support modification and URESA actions do not merge. A request for modification of a divorce decree is separate and distinct from an action arising under URESA. Oregon ex rel. Worden v. Drinkwalter (1985), 216 Mont. 9, 700 P.2d 150.

In this case, the URESA order (Cause No. 25137) did not refer to the underlying support order in Cause No. 24770, and neither party ever sought modification of the order as required by statute. We hold that the District Court correctly concluded that the original support order requiring Thomas to pay $225 per month was valid and had not been modified by the URESA enforcement action initiated by Willo.

Finally, Thomas argues that if the original support order was not modified by the URESA action, equity should intervene and bar Willo’s attempt to collect nine years of past due support payments under the doctrine of laches. However, the public pohcy of this state is that neither laches nor equitable estoppel applies to the recovery of child support arrears because children’s rights are at stake and will not be sacrificed by inaction of the custodial parent. Fitzgerald v. Fitzgerald (1980), 190 Mont. 66, 618 P.2d 867. Though one might reasonably expect the custodian to promptly seek enforcement of a support order, failure of the custodian to do so does not benefit the person failing to pay by relieving them of that duty. Fitzgerald, 618 P.2d at 869 (citing with approval Paterson v. Paterson (Wis. 1976), 242 N.W.2d 907).

Despite our refusal to apply laches to the recovery of past due child support obligations, we recently held the ten year statute of limitations for actions upon court judgments or decrees, Section 27-2-201(1), MCA, applicable to actions by one parent against the other for past due child support. In re the Marriage of Hooper & Crittendon (1991), 247 Mont. 322, 327, 806 P.2d 541, 544. Because all of the amounts Willo sought had accrued within the ten-year period prior to the filing of this action, the District Court was correct in concluding that all past due payments were recoverable.

For these reasons, the decision of the District Court is affirmed.

JUSTICES HARRISON, GRAY, HUNT and McDONOUGH concur.


author: JUSTICE HUNT

text:
    IN RE THE MARRIAGE OF JUDITH L. NEWTON, Petitioner and Respondent, and DANIEL J. NEWTON, Respondent and Appellant.
    No. 92-378.
    Submitted on Briefs November 19, 1992.
    Decided December 10, 1992.
    49 St.Rep. 1068.
    255 Mont. 463.
    844 P.2d 47.

      For Appellant: Charles A. Harball, Kalispell.
    For Respondent: Bruce McEvoy, Warden, Christiansen, Johnson & Berg, Kalispell.
   JUSTICE HUNT

delivered the opinion of the Court.

Petitioner and respondent, Judith L. Newton, brought a petition for dissolution of marriage on August 1, 1990. Respondent and appellant, Daniel J. Newton, appeals from the findings of fact, conclusions of law, and decree of dissolution entered by the District Court of the Eleventh Judicial District, Flathead County. Specifically, Daniel appeals from the District Court’s valuation of an item of the marital estate and from the District Court’s award of temporary maintenance. We affirm.

Daniel presents two issues for review by this Court:

1. Was the District Court’s valuation of the sports card collection clearly erroneous?

2. Was the District Court’s award of temporary maintenance in the sum of $450 per month for five years clearly erroneous?

Daniel and Judith Newton were married in 1975. Two children were bom during the marriage — a son in 1977, and a daughter in 1978. There are no issues raised on appeal relating to the District Court’s determination regarding child support, custody, or visitation.

A bench trial was held on August 15,1991. On February 20, 1992, the District Court entered its findings of fact, conclusions of law, and decree of dissolution. The parties stipulated to the value and distribution of much of the marital estate. At trial, the parties evidenced a general intent that each side should retain their own personal property which they were in possession of at the time of trial. One such item of personal property was a sports card collection belonging to Daniel. The parties offered conflicting evidence as to the value of the collection. The District Court assigned a value of $8000 to the collection.

The District Court found that the value of the parties’ assets was $44,707 and that none of the property was income-producing. This valuation excluded retirement accounts and a 1991 profit sharing check of Daniel’s which had been previously allocated between the parties. The total debt of the parties was $9863, leaving a net marital estate of $34,844. Judith received property worth $18,085 and assumed $1540 in debt, for a total award of $16,545. Daniel received property worth $26,622 and assumed $8323 in debt, for a total award of $18,299.

The District Court found that Daniel’s monthly expenses totalled $1768.45 and that Judith’s monthly expenses totalled $1450. This determination of Daniel’s monthly expenses included his child support obligation of $519.25 per month, as determined by the District Court. The District Court found that Daniel’s net income from his salary was approximately $1500 per month. At the time of trial, Daniel was employed by the Columbia Falls Aluminum Company where he had worked for the past twelve years. In addition to his salary, the evidence presented at trial indicated that Daniel had received annual profit sharing checks for the past four years in amounts approximating his annual salary. The evidence indicated that while the amount of the profit sharing checks may vary from year to year, it was expected that the payments would be made annually in the future.

The District Court found that pursuant to the requirements of Section 40-4-203(1), MCA, Judith was entitled to temporary maintenance. On appeal, Daniel does not contest this finding. The District Court ordered maintenance of $450 per month for a period of five years, or until Judith receives a bachelor’s degree, remarries, or dies, whichever occurs first. Following the entry of the decree of dissolution, Daniel made a motion for a new trial which was denied by the District Court. Daniel then brought this appeal.

I

Was the District Court’s valuation of the sports card collection clearly erroneous?

On appeal, Daniel attacks the District Court’s finding that the value of the sports card collection was $8000. Concerning our standard of review of marital property divisions, this Court recently stated that:

In the past, this Court has employed an abuse of discretion standard in reviewing a lower court’s determination of the appropriate division of the marital estate. This Court has recently clarified that our standard of review in regard to the factual findings of the district court relating to the division of marital property is whether the district court’s findings are clearly erroneous.

In re the Marriage of Danelson (Mont. 1992), 253 Mont. 310, 833 P.2d 215, 219, 49 St. Rep. 597, 599.

The only evidence at trial concerning the value of the collection was the conflicting testimony offered by the parties. Neither party offered independent evidence or testimony of the value of the collection. No appraisal of the collection was obtained. Judith testified that in her opinion the collection was worth $8000. On cross-examination, she stated that this estimation of the value of the whole collection was based in part on her sale of one particular album of the collection. Daniel testified that the one particular album sold was the most valuable in the collection and was not indicative of the value of the remainder of the collection. Daniel also testified that he purchased the baseball card portion of the collection for between $3250 and $4000. He then offered several opinions as to the value of the collection, first assigning a value of $3250 and then $2750.

Neither of the conflicting opinions of the parties as to the proper value of the collection was particularly compelling. The relatively unsupported assertions as to the value of the collection, coupled with the complete absence of any independent evidence of the value, placed the District Court in a difficult situation. Based on the evidence before it, the District Court found the value of the collection to be $8000.

Upon reviewing a District Court’s valuation of an item of the marital estate this Court is guided by several well-established principles. First, in a dispute over the value of property in a marriage dissolution, the District Court may assign any value that is within the range of values presented into evidence. In re the Marriage of Kramer (1987), 229 Mont. 476, 747 P.2d 865. Second, the trial court, having had the opportunity to observe the demeanor and judge the credibility of the witnesses, is in a better position to resolve conflicting factual testimony than is this Court. In re the Marriage of Gerhart (1990), 245 Mont. 279, 800 P.2d 698. In this instance, the District Court, after observing the testimony of the parties, found the value of the collection to be $8000. This value was within the range of values presented. We cannot say that the finding of the District Court as to the value of the collection was clearly erroneous.

II

Was the District Court’s award of temporary maintenance in the sum of $450 per month for five years clearly erroneous?

Daniel does not contend on appeal that Judith is not entitled to maintenance pursuant to the requirements of Section 40-4-203(1), MCA. However, Daniel contests the award on the basis of Section 40-4-203(2)(f), MCA, which sets forth one of the factors to be considered in determining the amount and duration of a maintenance award. Section 40-4-203(2)(f), MCA, provides that in awarding maintenance a district court judge shall consider:

[T]he ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

While not always the determining factor, a spouse’s ability to meet his or her own needs is a factor which must be given great weight in determining an award of maintenance. In re the Marriage of Cole (1988), 234 Mont. 352, 763 P.2d 39.

Daniel argues that with a monthly income from salary of $1500 and monthly expenses of $1768.45, as determined by the District Court, the award of maintenance by the District Court ignores the reality of his financial situation. This Court has in the past reversed awards of maintenance when it appeared that the party ordered to pay the maintenance would not have sufficient resources left over to support himself. In re the Marriage of Keel (1986), 223 Mont. 305, 726 P.2d 812; In re the Marriage of Tow (1987), 229 Mont. 483, 748 P.2d 440.

Judith responds to this argument by pointing out that Daniel’s income is in reality much greater than $1500 per month. The evidence at trial was that Daniel also receives an annual profit sharing check in an amount approximately equivalent to his salary. It is clear from the findings of fact, conclusions of law, and decree of dissolution, as well as from the District Court’s memorandum and order in response to the motion for a new trial, that the District Court considered this additional source of income in determining the maintenance award. Daniel’s additional income from the profit sharing checks was an appropriate basis for the District Court’s maintenance award in this case. An argument similar to Daniel’s was recently considered by this Court in In re the Marriage of Jacobson (Mont. 1992), 825 P.2d 561, 49 St. Rep. 92. In Jacobson, the husband asserted that his monthly income was less than his obligation for child support and maintenance. This Court noted that the husband’s corporation had a regular practice of declaring bonuses to pay expenses that the husband had incurred. This additional income allowed the husband to meet his support obligations while at the same time providing for himself. Likewise, Daniel’s additional income from the annual profit sharing checks will enable him to meet the maintenance obligation while providing for his own needs. The District Court’s award of maintenance in this situation was not clearly erroneous.

Affirmed.

JUSTICES HARRISON, TRIEWEILER, GRAY and WEBER concur.


author: JUSTICE HUNT JUSTICE TRIEWEILER

text:
    IN RE THE ESTATE OF ROBERT JOHN ALLEN, Decedent PATRICK JAMES CAMPBELL, Plaintiff and Appellant, v. WENDY RAE ALLEN, Personal Representative of the Estate of Robert John Allen, Deceased, Defendant and Respondent.
    No. 91-636.
    Submitted on Briefs June 11, 1992.
    Rehearing Denied January 7, 1993.
    Decided December 15, 1992.
    49 St.Rep. 1071.
    255 Mont. 469.
    843 P.2d 781.

      For Appellant: Patrick James Campbell, Pro Se, Deer Lodge.
    For Respondent: Douglas G. Skjelset, Skjelset Law Offices, Missoula.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellant Patrick James Campbell brought a claim against the estate of Robert John Allen. The personal representative of the estate disallowed the claim. Appellant then brought a petition in the District Court of the Third Judicial District, Powell County, seeking allowance of the claim. The District Court granted the motion of the personal representative to disallow the claim on the basis that the claim was not presented to the estate within the statutorily prescribed time period for bringing claims. We affirm.

The only issue before this Court is whether the District Court erred in determining that appellant’s claim against the estate is barred for failure to comply with the statutorily prescribed time period for filing claims.

Robert John Allen died on April 25, 1990. Wendy Rae Allen, the widow of the decedent, was appointed personal representative of the estate on May 8, 1990. Following her appointment, the personal representative ran a notice to creditors in a Powell County newspaper for three weeks, beginning on May 17, 1990. The notice stated that creditors of the estate had four months from the time of the notice in which to bring their claims against the estate. The four month period to bring claims ended on September 16,1990.

Appellant filed a claim against the estate of Robert John Allen on January 16,1991. Pursuant to Section 72-3-514, MCA, appellant had previously requested that bond be required of the personal representative. Appellant brought the claim in connection with injuries appellant allegedly sustained while a prisoner at the Montana State Prison in Deer Lodge. Appellant alleged these injuries occurred on April 20,1987, as a result of the negligent supervision of the decedent who at the time was a guard at the prison. The personal representative disallowed the claim by filing a notice of disallowance on January 23,1991. On March 13,1991, appellant submitted, pursuant to Section 72-3-805, MCA, a petition in the District Court seeking allowance of the claim against the estate of Robert John Allen and requesting a jury trial. On April 18,1991, the personal representative filed a motion to dismiss any petition appellant might file seeking allowance of the claim. The District Court returned the petition to appellant on the basis that the documents simply duplicated the earlier statement of claims by appellant. By order of May 7,1991, this Court stated that regardless of the timeliness of appellant’s initial claim against the estate, the District Court must accept and file appellant’s petition for allowance pursuant to Section 72-3-805, MCA. Whether appellant’s initial claim was timely or meritorious were issues to be decided by the District Court after receipt of appellant’s petition for allowance, and were not the basis upon which the petition should be accepted or rejected.

On October 31, 1991, the District Court granted the prior motion of the personal representative that appellant’s claim be disallowed, concluding that the claim was untimely pursuant to Section 72-3-801, MCA. In light of the determination that appellant was not a creditor of the estate, the District Court concluded that appellant lacked standing to request bond. This appeal followed.

The only issue before this Court is whether the District Court erred in determining that appellant’s claim against the estate is barred for failure to comply with the statutorily prescribed time period for filing claims.

The issue before this Court requires a review of a conclusion of law made by the District Court. Concerning this Court’s review of conclusions of law made by a lower court we have stated that “[w]e are not bound by the lower court’s conclusions and remain free to reach our own.” Schaub v. Vita Rich Dairy (1989), 236 Mont. 389, 391, 770 P.2d 522, 523. The basis for simply determining if the lower court’s conclusions are correct is that there is no discretion in determining a question of law. The lower court either correctly or incorrectly applies the law. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

Appellant’s claim against the estate is in tort. The incident from which appellant contends the claim arose occurred on April 20,1987. The statute of limitations for bringing an action in tort is three years. Section 27-2-204, MCA. Under usual circumstances, the statute of limitations for appellant to bring his action in tort would have run on April 20, 1990. However, Section 27-2-401, MCA, extends the period of limitations for persons under a disability. Section 27-2-401, MCA, provides in part that:

(1) If a person entitled to bring an action mentioned in part 2, except 27-2-211(3), is, at the time the cause of action accrues, either a minor, seriously mentally ill, or imprisoned on a criminal charge or under a sentence for a term less than for life, the time of such disability is not a part of the time limited for commencing the action. However, the time so limited cannot be extended more than 5 years by any such disability except minority.

At the time appellant’s cause of action accrued on April 20, 1987, appellant was a prisoner at the Montana State Prison. Appellant has been incarcerated continuously since April 20, 1987. The District Court was correct in concluding that appellant’s statutory disability extended the time period for bringing the tort action. However, Section 27-2-401, MCA, which extends the statute of limitations for persons under a disability only applies to “a person entitled to bring to bring an action mentioned in part 2.” The legislature has specifically provided for a different statute of limitations for bringing claims against an estate. Section 72-3-803, MCA, provides in part that:

(1) All claims against a decedent’s estate which arose before the death of the decedent, including claims of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by other statute of limitations, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented within the earlier of the following time limitations:
(a) within 1 year after the decedent’s death; or
(b) within the time provided by 72-3-801(2) for creditors who are given notice and within the time provided in 72-3-801(1) for all creditors barred by publication.

Section 72-3-801, MCA, provides for a four month period in which creditors may file claims after notice is published by the personal representative. Section 72-3-803, MCA, clearly applies to all claims against the estate, even if the statute of limitations has not run against the claim pursuant to the general period of limitations found in Title 27, Chapter 2, Part 2, MCA. Appellant did not present his claim against the estate within four months of the publication of notice to creditors by the personal representative.

In finding that the appellant’s claim was barred by the statute of limitations, the District Court summarized the applicable law stating that:

The ordinary statute of limitations on [appellant’s] alleged tort claim is three years (27-2-204, MCA), and he commenced no action during that time, so his claim would ordinarily be barred. However, section 27-2-401 extends this for up to five years because [appellant] is imprisoned. However, section 72-3-801 requires that a claim against a deceased person must be filed within four months from the date of the first publication of notice to creditors, which constitutes a special statute of limitations as to decedents, and there is no extension provided by law for this even for persons having a statutory “disability.”

We hold that the District Court’s analysis and application of the law was correct and that appellant is barred from bringing his claim against the estate by the applicable statute of limitations found at Section 72-3-803, MCA.

Affirmed.

JUSTICES HARRISON, GRAY and McDONOUGH concur.

JUSTICE TRIEWEILER

specially concurring.

I concur with the result of the majority opinion. I do not agree with all that is said therein.

Specifically, I do not agree that the District Court’s “analysis and application of the law was correct.”

Section 27-2-401, MCA, tolls the statutes of limitation which apply to the commencement of actions. Commencement of an action implies formal filing in a court of law. As defined in Blacks Law Dictionary, an action is “[t]he legal and formal demand of one’s right from another person or party made and insisted on in a court of justice.” Blacks Law Dictionary 46 (4th ed. 1968).

In this case, the petitioner failed to file a timely creditor’s claim with the personal representative of the estate. Had he done so, I conclude that the time within which he could have filed his claim in District Court would have been tolled by Section 27-2-401, MCA. However, the tolling statute does not pertain to claims against estates. Therefore, I concur in the majority’s opinion which affirms the judgment of the District Court.


author: JUSTICE GRAY

text:
    IN RE THE MARRIAGE OF CYNTHIA A. FRYDENLUND, Petitioner and Appellant, and MERLIN C. FRYDENLUND, Respondent and Respondent.
    No. 92-192.
    Submitted on Briefs October 14, 1992.
    Decided December 15, 1992.
    49 St.Rep. 1074.
    255 Mont. 474.
    844 P.2d 58.

      For Appellant: David F. Stufft, Cut Bank.
    For Respondent: Robert G. Olson, Frisbee, Moore & Olson, Cut Bank.
   JUSTICE GRAY

delivered the Opinion of the Court.

Cynthia Frydenlund appeals from an order of the Ninth Judicial District Court, Toole County, designating respondent Merlin Frydenlund as primary physical custodian of the parties’ two youngest children. We reverse.

The sole issue on appeal is whether the District Court erred by applying the “best interest” standard contained in Section 40-4-212, MCA.

The parties’ marriage was dissolved on June 20,1985. The District Court awarded Merlin and Cynthia (Cindy) joint custody of their three children, Tiffany, Travis and Tennile, and designated Cindy as the physical custodian. Merlin has enjoyed liberal visitation since the dissolution.

On January 29, 1992, Merlin moved to modify the joint custody award, requesting that the court dissolve joint custody and award him sole custody of Travis, age 11, and Tennile, age 9; he also requested that Tiffany, age 15, be allowed to reside with the parent of her choice. The motion alleged that the children’s circumstances had changed since the decree and that their physical, mental, moral or emotional health was seriously endangered. In his supporting affidavit, Merlin claimed that the children’s desire to live with him, Cindy’s unstable home, an incident of physical abuse to Tiffany, and the children’s adjustment to his household supported his motion.

The District Court heard testimony from numerous witnesses and interviewed Travis and Tennile in camera. The testimony generally established that both parents were fit, caring and loving, and that the children were polite and well-adjusted. After Merlin’s case in chief, and again at the close of testimony, the District Court expressed its intention to use the best interest standard in considering Merlin’s motion. In response, Cindy’s counsel argued that Section 40-4-219, MCA, and more specifically — given Merlin’s motion and testimony— the serious endangerment standard contained therein, applied rather than the best interest standard announced by the court. In closing argument and rebuttal, Merlin’s counsel argued that the children’s present environment with their mother seriously endangered their mental or emotional health.

Did the District Court err by applying the ‘best interest” standard contained in Section 40-4-212, MCA?

Cindy argues that the District Court erred as a matter of law in concluding that Section 40-4-212, MCA, rather than Section 40-4-219, MCA, applied to the case before it. Our standard of review relating to conclusions of law is whether the district court’s interpretation of the law is correct. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603.

Insofar as is pertinent here, the District Court began by making the following finding of fact:

6. The Respondent only expressed at trial a desire for a change in primary custodian with reasonable rights of visitation, not sole custody. The Petitioner met this issue with testimony of her own.

Based on that finding, the District Court concluded that pursuant to Rule 15(b), M.R.Civ.P., the issue of modifying only the physical custody provisions of the joint custody decree was raised by the express or implied consent of the parties at the hearing. As a result, the court concluded that the “serious endangerment” standard of Section 40-4-219, MCA, did not apply, and that the proper test was the ‘best interest of the child” standard pursuant to Section 40-4-212, MCA. The District Court modified the joint custody award by designating Merlin as the primary physical custodian of Travis and Tennile and allowing Tiffany to choose her residence. Cindy appeals.

Our analysis begins with the finding set forth above which forms the basis for the conclusions of law at issue. In reviewing a district court’s finding of fact, we apply the clearly erroneous test, the first prong of which is whether the finding is supported by substantial evidence. Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. Our review of the record indicates a lack of substantial evidence to support the District Court’s finding.

Merlin’s original motion unequivocally requests that joint custody be dissolved and that he be awarded sole custody of Travis and Tennile on the basis that the children’s present environment “seriously endangers their physical, mental, moral or emotional health ....” Thus, the motion clearly mirrors the requirements of Section 40-4-219, MCA. Nor did Merlin relinquish his claim for sole custody at the hearing; he reinforced his commitment to sole custody with testimony such as the following:

Q: Have you filed with this Court a motion to modify a prior custody order with respect to Travis and Tennile, to give you sole custody of these children?
A: Yes, I have. [Emphasis added.]

The entire thrust of Merlin’s case reveals his intent to seek sole custody pursuant to Section 40-4-219, MCA. He farther testified that:

(1) Cindy is not mentally stable enough to provide for the needs of the children;
(2) Cindy physically abused Tiffany in front of the younger children;
(3) Cindy’s younger boyfriend spends the night at her house, which he feels is not a good environment for the children; and
(4) The children’s strong desire to live with him would result in serious endangerment of their mental or emotional health if custody is not modified.

Finally, Merlin’s counsel in closing argument continued to stress that the children’s present environment with their mother seriously endangered their mental or emotional health, echoing the requirements of Section 40-4-219, MCA.

The District Comet’s finding that Merlin “only expressed at trial a desire for a change in primary custodian with reasonable rights of visitation, not sole custody” is devoid of support in the record. Therefore, we conclude that the finding is clearly erroneous.

Based on this erroneous finding, the District Court concluded that the issue of modifying only the physical custody provisions of the joint custody decree was raised by express or implied consent of the parties at the hearing, citing Rule 15(b), M.R.Civ.R That conclusion is erroneous as a matter of law. As discussed, Merlin himself did not “consent” to that issue. More importantly, even if Merlin had consented to revising the issue before the court, Cindy clearly did not do so. Indeed, Cindy’s counsel reiterated objections to the court’s use of the “best interest” standard at every juncture. No consent of the parties exists in this case upon which the court properly could characterize the issue before it as one of modifying physical custody only. Therefore, the District Court’s application of Rule 15(b), M.R.Civ.P., was in error.

The issue before the District Court was whether to dissolve joint custody and award sole custody of Travis and Tennile to Merlin. Montana law is clear that, where a joint custodian seeks to terminate joint custody and obtain sole custody, Section 40-4-219, MCA, applies. See Section 40-4-224(3), MCA; In re Marriage of Gahm (1986), 222 Mont. 300, 722 P.2d 1138; Keil v. Ferguson (1990), 246 Mont. 344, 805 P.2d 1334. Thus, the court erred in applying only the best interest standard of Section 40-4-212, MCA.

Merlin argues, somewhat disingenuously given the posture of his case throughout the District Court proceedings, that the court merely modified physical custody of Travis and Tennile and, therefore, that it did not err in applying Section 40-4-212, MCA. He directs our attention to a number of cases in which we have stated that modification of the physical custody provisions of a joint custody award, as opposed to termination of joint custody, is governed by Section 40-4-212, MCA. Merlin’s characterization of the cases is correct; however, the cases are distinguishable.

For example, in In re Marriage of Johnson (1989), 238 Mont. 153, 777 P.2d 305, the father moved to modify the physical custody provisions of the joint custody award. We focused on the nature of his motion and concluded that Section 40-4-212, MCA, rather than Section 40-4-219, MCA, was applicable because the motion sought only a modification of physical custody. Id. at 156. Similarly, when a father petitioned the court for clarification of the physical custody arrangements of a joint custody award, we again affirmed the district court’s application of the best interest standard of Section 40-4-212, MCA. In re Custody of J.H. (1988), 231 Mont. 301, 303, 752 P.2d 194, 195. The moving parties in J.H. and Johnson did not actively seek dissolution of the joint custody and granting of sole custody as Merlin did in this case.

As discussed above, the case presented to the District Court, and the issue before it, was a motion to terminate joint custody and to award sole custody to Merlin. Rule 15(b), M.R.Civ.P, did not operate to alter or amend the issue. A district court’s acts must be within the issues presented to the court. In re Custody of C.S.F. (1988), 232 Mont. 204, 209, 755 P.2d 578, 582 (citations omitted).

Finally, Merlin argues, under both the “serious endangerment” and the “integration” factors, that the requirements of Section 40-4-219, MCA, were met. We decline to address this argument absent an opportunity for the District Court to do so first on the record before it.

Reversed and remanded for findings and decision pursuant to Section 40-4-219, MCA.

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