text:
    IN RE J.J.G., a Youth in Need of Care.
    No. 97-233.
    Submitted on Briefs December 18, 1997.
    Rehearing Denied March 26, 1998.
    Decided February 12, 1998.
    1998 MT 28.
    55 St.Rep. 100.
    287 Mont. 313.
    954 P.2d 1120.

      For Appellants: David L. Irving, Attorney at Law, Glasgow (on behalf of Thompsons).

      For Respondent: Hon. Joseph P. Mazurek, Attorney General; Tammy K. Plubell, Assistant Attorney General; Helena; Ed Amestoy, Phillips County Attorney; Jack Jenks, Deputy County Attorney; Malta.
    For Youth: James Spangelo, Attorney at Law, Havre (on behalf of J.J.G.).
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶1 Rick and Colleen Thompson filed a petition in the District Court for the Seventeenth Judicial District in Phillips County for permanent legal custody of J.J.G., a youth in need of care. The District Court dismissed their petition and awarded custody with the right to consent to adoption to the Department of Family Services. The Thompsons appeal. We affirm the order of the District Court.

¶2 There are three issues on appeal:

¶3 1. Did the District Court err when it dismissed the Thompsons’ petition for permanent legal custody?

¶4 2. Did the District Court err when it awarded permanent legal custody of J. J.G. with the right to consent to adoption to the Department of Family Services?

¶5 3. Did the District Court err when it adopted verbatim the Department of Family Services’s proposed orders?

FACTUAL BACKGROUND

¶6 J.J.G. was born on June 29,1990. His mother was developmentally disabled and had a history of alcohol abuse, and the attending physician at J.J.G.’s birth concluded that J.J.G. suffered from fetal alcohol syndrome. Due to its concerns regarding the mother’s ability to care for J.J.G., on July 5,1990, the Montana Department of Family Services (DFS) placed J.J.G. with foster parents Rick and Colleen Thompson in Glasgow.

¶7 On August 2, 1990, the District Court granted the DFS temporary investigative and protective services authority, after it concluded that there was probable cause that J.J.G. was abused or neglected pursuant to § 41-3-102, MCA. At that time, a guardian ad litem and separate attorney were appointed for the child. Thereafter, the DFS prepared a report to the District Court in which it indicated that the mother’s adoptive brother and sister-in-law, Martin and Loreen Scholler, had volunteered to care for J.J.G. and the mother while the mother underwent treatment for her abuse and took part in parenting education. The Schollers lived in Washington state and were also approved foster parents.

¶8 In January 1992, the District Court declared that J.J.G. was a youth in need of care and transferred legal custody to the DFS pursuant to § 41-3-406(l)(c)(i), MCA. The DFS removed J.J.G. from the Thompsons’ home, and both the child and the mother moved to Washington to live with the Schollers. Although the mother has since left the Schollers’ home, J.J.G. has, up to the present, lived with and remained in the custody of the Schollers.

¶9 In January 1993, the DFS petitioned the District Court to terminate the mother’s (and natural father’s) parental rights and to grant permanent legal custody of J.J.G. to the DFS with the right to consent to adoption. On February 10,1993, the Thompsons also filed a petition for permanent legal custody. The District Court dismissed the Thompsons’ petition. This Court, however, held on appeal that the Thompsons could petition for permanent custody, and also ordered that the District Court order a mental and psychological evaluation of J.J.G., in accordance with an earlier motion by the Thompsons. See In re J.J.G. (1994), 266 Mont. 274, 880 P.2d 808.

¶10 Throughout his life, the physical, mental, and emotional adjustment of J.J.G. has been a significant subject of concern, and his behavioral and developmental difficulties are well-recognized. For that reason, and due in large part to these proceedings, J.J.G. has undergone numerous evaluations by a variety of child professionals. The Thompsons frequently have requested the District Court to order that the evaluations occur in Montana by the professionals of their designation, even after J.J.G. had moved to Washington. In response to their requests, following remand to the District Court, the District Court ordered that J.J.G. have a mental and psychological evaluation. The DFS moved to delay the evaluations until the District Court could conduct a separate hearing to determine the appropriate professionals to perform the evaluation, and, in December 1994, the Thompsons and the DFS stipulated that a team of evaluators from Montana and Washington, selected by both parties, would evaluate J.J.G. in Washington.

¶11 Pursuant to the District Court’s order, J.J.G. was evaluated on July 10, 1995, at the University of Washington Medical Center by four child professionals, two of whom had been chosen by the Thompsons and two of whom had been chosen by the DFS. The results of the evaluation, as revealed by each of the four evaluators, showed that J.J.G. was a strong candidate for special education assistance; the two physicians also indicated that he suffered from fetal alcohol syndrome. The results did not address in detail J.J.G.’s custody situation, although a psychologist selected by the Thompsons stated that “his current foster placement appears to be adequate and meeting his needs.”

¶12 In January 1996, the District Court set a hearing date for March 17, 1996, for the final disposition. After the hearing date had been vacated several times, the District Court scheduled the dispositional hearing on July 30, 1996.

¶13 However, counsel for all interested parties, including counsel for the child and the guardian ad litem, appeared and stipulated that a separate bonding evaluation should occur prior to the final dispositional hearing. On August 12,1996, the District Court continued the hearing and ordered the bonding evaluation to occur before November 8, 1996, according to the terms of the stipulation.

¶14 The bonding evaluation was to address three questions: (1) Has J.J.G. bonded with the Schollers? (2) Does the evaluator have any concerns about J.J.G.’s bonding with the Schollers? (3) If the evaluator has any concerns about J. J.G.’s bonding with the Schollers, or if J.J.G. is not bonded with the Schollers, what is the evaluator’s recommendation based on all available information? The evaluation was to occur in Washington, and the evaluator was to have broad discretion in her evaluation. In addition, the Thompsons agreed that if the evaluator recommended the continued placement of J.J.G. with the Schollers, they would withdraw their petition for permanent custody; but, if the recommendation was for placement with the Thompsons, the DFS was still entitled to a hearing.

¶ 15 The bonding evaluation was conducted by Elizabeth Robinson, Ph.D., a clinical psychologist. Her evaluation incorporated a review of many of the previous evaluations of J.J.G., as well as her own substantial contact with J.J.G. and the parties to this case. In her final report of October 24, 1996, she “recommended that [J.J.G.] be allowed to remain with the Schollers and that they be given ongoing assistance.” She also strongly recommended that J.J.G. needs to be in long-term therapy to address his behavioral and developmental problems.

¶16 Despite the terms of the stipulation, the Thompsons did not withdraw their petition. Instead, on November 14, 1996, they filed a motion to amend the District Court’s order of August 12, 1996. Essentially, they requested that the District Court delay the final dispositional hearing, which the District Court had scheduled for December 4-6, 1996, for another year, and that the District Court order psychotherapy for J.J.G. for at least the next year. The basis of their motion was Dr. Robinson’s recommendation that J.J.G. needed continuing therapy, as well as their own contention that if the District Court made a final disposition, it would lose authority over the DFS, which they alleged would ignore Dr. Robinson’s recommendations. They relied in large part on a follow-up letter from Dr. Robinson, which responded to a letter from the Thompsons seeking clarification of Dr. Robinson’s report to the District Court. In response to the motion, the DFS filed a motion to enforce the August 12, 1996, stipulation and order.

¶17 On December 6, 1996, the District Court held a hearing to receive evidence regarding the motions and for a final disposition. On February 25, 1997, the District Court issued orders resolving the motions and an order of disposition. It denied the Thompsons’ motion to amend the August 12, 1996, order, dismissed the Thompsons’ petition for permanent custody pursuant to the terms of the stipulation, and awarded permanent legal custody of J.J.G. to the DFS with the right to consent to adoption. Pursuant to § 41-3-406(1), MCA, the District Court also required that the DFS provide treatment and counseling to J.J.G. for at least one year, and that the DFS report to the District Court, pursuant to § 41-3-610, MCA, in 180 days regarding the child’s placement.

ISSUE 1

¶18 Did the District Court err when it dismissed the Thompsons’ petition for permanent legal custody?

¶19 Our standard of review for cases involving youths in need of care has been clearly articulated. See In re J.J.G. (1994), 266 Mont. 274, 281, 880 P.2d 808, 812; In re D.H. and F.H. (1994), 264 Mont. 521, 525-26, 872 P.2d 803, 805.

¶20 We consider whether a district court’s findings of facts are clearly erroneous, pursuant to the standard set forth in Interstate Production Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. See In re J.J.G., 266 Mont. at 281, 880 P.2d at 812; In re D.H. and F.H., 264 Mont. at 524-25, 872 P.2d at 805. In addition, we review a district court’s conclusions of law to determine if they are correct. See In re J.J.G., 266 Mont. at 281, 880 P.2d at 812; In re D.H. and F.H., 264 Mont. at 525, 872 P.2d at 805. If the district court’s findings of fact are not clearly erroneous and its conclusions of law are correct, we will not reverse its decision regarding a custody determination of a child absent an abuse of discretion. See In re D.H. and F.H., 264 Mont. at 525-26, 872 P.2d at 806; see also In re Custody of J.M.D. (1993), 259 Mont. 468, 473, 857 P.2d 708, 712.

¶21 Here, the Thompsons assert that the District Court erred when it dismissed their petition pursuant to the terms of their stipulation. They contend that the withdrawal of their petition would not be in the best interest of J.J.G. and that Dr. Robinson’s recommendation of continued placement with the Schollers was conditional and, therefore, essentially rendered the stipulation ineffective.

¶22 We agree with the Thompsons that their petition cannot be dismissed solely on the basis of the terms of the stipulation. The custody of a child is not subject to contract. Rather, in all matters relating to children, a district court must be guided by the best interest of the child, not by agreement of others. See In re Custody of J.M.D., 259 Mont. at 473, 857 P.2d at 711-12; In re Marriage of Fesolowitz (1993), 258 Mont. 380, 386, 852 P.2d 658, 662. The District Court’s determination must be based on its own independent judgment of the child’s best interest. See In re Custody of J.M.D., 259 Mont. at 473, 857 P.2d at 712.

¶23 Contrary to the Thompsons’ assertion, however, we find substantial and credible evidence in the record to support the District Court’s findings, which, independent of the parties’ stipulation, support its decision to dismiss the Thompsons’ petition for permanent custody. Although the stipulation was clearly intended in large part to effectuate a final determination of this matter, the District Court’s decision not to delay a determination for another year and its consequent dismissal of the Thompsons’ petition do not indicate that it disregarded the best interest of the child or that it acted simply on the basis of the stipulation.

¶24 The District Court’s findings reflect that it exercised its independent judgment regarding the child’s best interest. Its findings are supported by the record and were not clearly erroneous, and we conclude that it did not abuse its discretion. Therefore, we conclude that the District Court did not err when it dismissed the petition. ¶25 In fact, we conclude that an application of the best interest of the child standard requires precisely the kind of balancing that occurred here. The District Court weighed, in light of the vast record in this case, the postponement of a final disposition against the potential benefit of further evaluation and determined that further challenges and protraction by the Thompsons’ were not in J.J.G.’s best interest.

¶26 Therefore, we affirm the District Court’s denial of the Thompsons’ motion to amend and its dismissal of their petition for permanent custody.

ISSUE 2

¶27 Did the District Court err when it awarded permanent legal custody of J.J.G. with the right to consent to adoption to the DFS?

¶28 The Thompsons allege that the manner in which the DFS has handled the custody and treatment (or the alleged lack thereof) of J.J.G. constitutes institutional neglect. They rely largely on the testimony of Margaret Stuart, an expert in the areas of social work and child placement issues, who conducted a records review of this matter for the Thompsons. On the basis of Stuart’s review, as well as their earlier allegations, the Thompsons contend that the District Court’s award of permanent custody to the DFS constitutes an abuse of discretion.

¶29 Upon review of the record, however, we conclude that the District Court did not abuse its discretion. It is well-established that a district court is in the best position to determine the best interest of a child. See In re Marriage of Otto (1990), 245 Mont. 271, 274, 800 P.2d 706, 708; In re Marriage of Ward (1986), 223 Mont. 401, 403-04, 725 P.2d 1211, 1213. Moreover, issues of evidentiary weight and witness credibility are clearly within the province of the district court, and we will not substitute our judgment for the district court’s. See In re Marriage of Abrahamson (1996), 278 Mont. 336, 342, 924 P.2d 1334, 1338; In re J.L. (1996), 277 Mont. 284, 290, 922 P.2d 459, 462.

¶30 Here, Stuart’s testimony reflected the fact that her recommendation was based strictly on her review of the records, and it did not involve any personal experience with J.J.G. or with the professionals who had been treating and evaluating him in Washington. Also before the District Court, in addition to other evidence about the care that J.J.G. had received, was Stuart’s testimony that J.J.G. had received substantial evaluation and treatment in Washington. Finally, the record indicates that many of the allegations of neglect were in fact distortions of events that occurred many years before. Although her conclusion from her review was that the DFS had essentially mistreated J.J.G. and neglected his special needs, we conclude, in light of the record, that the District Court did not err when it found otherwise.

¶31 Stuart recommended that, ideally, a foster child should be adopted at an early age by his extended family. Here, J.J.G. had lived with the Schollers for almost his entire life. Dr. Robinson testified that J. J.G. felt the Schollers were his family and that their home was his home. Accordingly, the District Court did not abuse its discretion when it preserved J.J.G.’s family environment by awarding permanent custody with the right to consent to adoption to the DFS.

ISSUE 3

¶32 Did the District Court err when it adopted verbatim the DFS’s proposed orders?

¶33 We stated in In re Marriage of Nikolaisen (1993), 257 Mont. 1, 5, 847 P.2d 287, 289, that it is not error per se for a district court to adopt a party’s proposed findings and conclusions. We will review the findings and conclusions to determine whether they are “sufficiently comprehensive and pertinent to provide a basis for a decision, and whether they are supported by substantial evidence.” Nikolaisen, 257 Mont. at 5, 847 P.2d at 289. See also In re Marriage of Allison (1994), 269 Mont. 250, 265, 887 P.2d 1217, 1226; Norman v. City of Whitefish (1993), 258 Mont. 26, 31, 852 P.2d 533, 536.

¶34 Our review of the record in this matter reveals that the District Court’s findings are supported by substantial evidence and that the best interest of J.J.G. were considered by the District Court and formed the basis of its independent judgment in this matter. Accordingly, we hold that the District Court did not err when it adopted the DFS’s proposed findings and conclusions.

¶35 Therefore, we affirm the orders and judgment of the District Court.

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


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    IN RE MARRIAGE OF TAMMI MARIA BAER, Petitioner and Appellant, and MONTE WAYNE BAER, Respondent and Respondent.
    No. 97-544.
    Submitted on Briefs January 15, 1998.
    Rehearing Denied February 26, 1998.
    Decided February 12, 1998.
    1998 MT 29.
    55 St.Rep. 104.
    287 Mont. 322.
    954 P.2d 1125.

      For Appellant: David C. Humphrey, Humphrey Law Office, Poison.
    For Respondent: James A. Manley, Law Offices of Manley & O’Rourke-Mullins, Poison.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶1 Tammi Baer filed a petition for dissolution of her marriage to Monte Baer in the District Court for the Twentieth Judicial District in Lake County. After a trial, the District Court granted the dissolution, divided the marital property, and awarded residential custody of their children to Monte. Tammi appeals. We affirm in part and reverse in part the judgment of the District Court.

¶2 There are three issues on appeal:

¶3 1. Did the District Court err when it awarded custody of the couple’s children to Monte?

¶4 2. Did the District Court err when it divided the marital estate?

¶5 3. Did the District Court err when it declined to hold Monte in contempt of court?

FACTUAL BACKGROUND

¶6 Tammi and Monte Baer were married in September 1993, in Lake County. They have three children: Dawson Jerome, who is now three years old; Megan Amber, who is now two years old; and Cody Tyler Dillon, who is now one year old. Tammi is also the mother of five-year-old Eric, to whom she gave birth prior to her marriage; Monte is not Eric’s biological father.

¶7 Monte is a licensed pilot and certified aircraft mechanic. Prior to and during the marriage, Monte owned and operated Mission Aviation, a business which repairs and sells small aircraft. His father, Wayne Baer, has a similar business and owns a hangar and runway in Ronan. Monte has an informal agreement with Wayne that he can use the hangar and runway in exchange for his services when Wayne needs help on a project. The two also sometimes invest in aircraft together. Monte’s income during the marriage averaged approximately $1,000 per month, and at no point during the marriage did Tammi work outside of the home.

¶8 Soon after their marriage, Monte and Tammi, who was pregnant at the time, went to Alaska where Monte had temporary work. They returned to Montana after three months and moved into a mobile home next to the hangar on land owned by Monte’s parents. Elsewhere on the land owned by Monte’s parents was a school and church in which the family were active participants. Monte returned to work in Alaska in 1994 for approximately six months, and then again for ten weeks in 1995. After he returned, Monte and Tammi borrowed money from Monte’s brother and purchased a different mobile home, which they placed on Monte’s parents’ land near the end of the runway.

¶9 With the exception of the couple’s mobile home, their only other significant asset is a 1990 van, which they purchased with a $6,000 loan from Wayne. Monte owned a plane prior to the marriage, but he sold it in 1994, used the proceeds to purchase a one-half interest in a second plane, and rebuilt it with Wayne in an attempt to sell it; they have not yet sold the plane. Monte and Tammi still owe approximately $4,800 to Wayne for the van, and approximately $9,000 for the mobile home.

¶10 On March 25, 1996, Tammi filed a petition for dissolution in the District Court. On April 10, the District Court entered an order to enforce a temporary stipulation between the parties. The stipulation provided that Tammi was to have custody of the children and remain in the mobile home while the action was pending, and that Monte was to refrain from any interference to her occupancy. It also prohibited Tammi and Monte from disturbing each other’s peace or encumbering each other’s assets. Finally, the stipulation set forth Monte’s visitation schedule with the children and required Monte to pay Tammi $350 per month for child support.

¶11 During the period of the stipulation, numerous conflicts occurred between the parties regarding Monte’s visitation with the children. The exchange of the children became so volatile that Tammi tape-recorded the exchanges and conversations, and Monte always had one of his family members accompany him to videotape the exchanges. Additionally, Tammi and/or her family involved law enforcement officials in the exchanges on several occasions.

¶12 Other problems occurred as well. For example, Monte stopped making child support payments to Tammi in August 1996. Tammi sought assistance from the State, and eventually the Child Support Enforcement Division assumed responsibility for the collection and distribution of child support payments. However, Monte has apparently not made any payments since August 1996. In September 1996, Wayne served an eviction notice on Tammi. Monte had tried to dissuade Wayne from evicting Tammi, but he nonetheless accompanied Wayne when Wayne served the notice. Wayne also filed liens against the van and mobile home.

¶13 On February 4, 1997, Tammi filed a motion for citation and order to show cause why Monte should not be held in contempt for violation of the stipulation. She submitted affidavits that described Monte’s role in the attempted eviction and lien filings, and his failure to pay child support. She also alleged that Monte violated the order and harassed her when they exchanged the children, and that at times he refused to return the children. Finally, she alleged abuse by Monte after Eric had been spanked and Cody sustained a head injury during visitations with Monte. Tammi also complained of the incidents to the Lake County Department of Family Services.

¶14 The District Court issued the order and set a hearing at which to show cause for February 26, 1997. On February 10, Monte requested a final hearing date and that the show cause hearing be held at the same time, based on the fact that evidence and witnesses would be the same at each hearing. Two days later, the District Court vacated the initial show cause hearing date and set March 10, 1997, for the final hearing and show cause hearing. Tammi first sought to vacate the March 10 hearing date due to a conflict with counsel’s schedule, and then moved the District Court to reinstate the February 26 show cause hearing. After the parties briefed the issue, the District Court granted Tammi’s motion and vacated the March 10 hearing date, but denied her request to reinstate the original show cause hearing date. Instead, it set the hearing and trial for May 22, 1997.

¶15 The parties continued to seek a hearing and moved to alter temporary custody and visitation. Both Tammi and Monte alleged abuse by the other as the cause of the injury to Cody. The District Court refused to hold a separate hearing to consider the motions and retained May 22 as the date for trial.

¶16 A three-day trial was held, after which the District Court issued findings of fact, conclusions of law, and a decree of dissolution. The District Court awarded the parties joint legal custody, and found that it would be in the best interests of the children if Monte was the primary residential custodian. It also concluded that neither party should receive maintenance nor child support. The District Court awarded Monte the van and the mobile home, along with responsibility for the debt on those items, and found that the business inventory and plane were a part of his premarital property to which Tammi was not entitled. Tammi retained the car which she owned prior to the marriage and received miscellaneous household items as her share of the marital property. Finally, the District Court concluded that all of Tammi’s motions to have Monte held in contempt should be denied.

ISSUE 1

¶17 Did the District Court err when it awarded custody of the couple’s children to Monte?

¶18 Our standard of review for a district court’s award of child custody is whether the district court’s findings are clearly erroneous. See In re Marriage of Dreesbach (1994), 265 Mont. 216, 220, 875 P.2d 1018, 1021. When the findings are supported by substantial credible evidence, we will affirm the district court’s decision unless a clear abuse of discretion is shown. See In re Marriage of Hogstad (1996), 275 Mont. 489, 494, 914 P.2d 584, 587; Dreesbach, 265 Mont. at 221, 875 P.2d at 1021.

¶ 19 In a marriage dissolution, a district court shall determine child custody matters in accordance with the best interests of the child. See § 40-4-212, MCA. The statute lists many factors for the district court to consider in its determination of a child’s best interest, and although it need not make specific findings pertaining to each factor, a district court must consider the guidelines in the statute. See In re Marriage of DeWitt (1995), 273 Mont. 513, 516, 905 P.2d 1084, 1086; In re Marriage of Saylor (1988), 232 Mont. 294, 297-98, 756 P.2d 1149, 1151.

¶20 Here, the District Court made specific findings for each factor. Tammi claims that three of the findings are erroneous. She contends that the District Court erred when it characterized the children’s relationship with Monte as excellent and with Tammi as good, and when it found that Tammi’s and her mother’s “frequent” and “unnecessary” involvement of law enforcement officers was not in the children’s best interests. See § 40-4-212(l)(c), MCA (1995). Tammi also asserts that the District Court erred when it found that the children’s adjustment to their home, church, and community is better when they are with Monte than when they are with Tammi. See § 40-4-212(l)(d), MCA (1995). Finally, she argues that the District Court erred when it found that there was no evidence of physical abuse or threat of physical abuse by either parent against each other or the children. See § 40-4-212(l)(f), MCA (1995).

¶21 The District Court heard testimony from many individuals who knew both Tammi and Monte and their relationship with the children. Each party attempted to portray themselves as the better parent and, as Tammi contends, there was evidence presented which was favorable to Tammi. Our inquiry on appeal, however, focuses instead on whether there is substantial credible evidence to support the District Court’s finding that the children had a better relationship with and were better adjusted while with Monte.

¶22 Tammi directs this Court to the testimony that she offered regarding Monte’s alleged abuse of the children and the need to involve law enforcement when they exchanged the children as support for her contention that the District Court erred when it found Monte’s relationship with the children better than her relationship. Upon review of the record, however, we find testimony which not only disputes that testimony, but which specifically depicts Monte as a better parent. Especially here, where the testimony often conflicted and where each party elicited negative testimony regarding the other parent’s behavior, character, and parenting skills, we recognize that the weight to be given that testimony and a determination of the witnesses’ credibility is squarely within the province of the District Court. See In re Marriage of Smith (1988), 232 Mont. 527, 529, 757 P.2d 784, 785; In re Marriage of Speer (1982), 201 Mont. 418, 422, 654 P.2d 1001, 1003; see also In re Marriage of Mitchell (1991), 248 Mont. 105, 108, 809 P.2d 582, 584. Therefore, we conclude that the District Court was not clearly erroneous when it found that the children’s relationship and adjustment is better while they are with Monte than it is while they are with Tammi. See also In re Marriage of Rolfe (1985), 216 Mont. 39, 44-45, 699 P.2d 79, 82.

¶23 Tammi also asserts that the District Court erred when it found that there was no evidence or threat of physical abuse by Tammi or Monte against each other or the children. Upon review of the record, we find that each party made allegations of abuse and that they each offered evidence to attribute the children’s injuries to the other’s abuse.

¶24 Tammi relies heavily on a doctor’s report that described Cody’s injury as inconsistent with Monte’s explanation of the incident, and on what she describes as a substantiated finding of abuse against Eric from the DFS. At trial, however, a DFS official testified that she determined that Monte had not physically abused Cody, and that the physicians’ reports do not “come to a consensus about how the injury could have occurred.” There was also testimony that the DFS findings were being reviewed and challenged for, among other reasons, the DFS’s failure to interview eyewitnesses to the incident. Given the conflict and uncertainty in the testimony, we conclude that the District Court was not clearly erroneous when it found that the mutual allegations of abuse did not give rise to a finding of physical abuse against either parent.

¶25 Finally, Tammi asserts that because she was the primary caretaker, the District Court erred when it denied her residential custody, pursuant to § 40-4-212(3)(a), MCA (1995). The statute states:

(3) The following are rebuttable presumptions and apply unless contrary to the best interest of the child:
(a) Custody should be granted to the parent who has provided most of the primary care during the child’s life.

We stated in In re Marriage of Abrahamson (1996), 278 Mont. 336, 343, 924 P.2d 1334, 1338-39, that the statute creates only a rebuttable presumption, and that a district court’s failure to mention it does not necessarily mean that it failed to consider the presumption or that it committed reversible error. Rather, we recognize that the statute affords the primary caregiver an initial presumption in the district court that it is in the children’s best interests for the primary caregiver to be awarded custody, but that the non-primary caregiver can rebut that presumption with substantial credible evidence of his own that the children’s best interests would be served through an award of custody to him.

¶26 Here, Monte put forth substantial credible evidence to support his contention that it would be in the children’s best interests for him to have residential custody. As we stated above, the findings reflect that the District Court considered the best interests of the children, the findings are not clearly erroneous, and we conclude that the District Court did not abuse its discretion when it determined that Monte should have custody.

¶27 We affirm the District Court’s judgment as to the custody of the children.

ISSUE 2

¶28 Did the District Court err when it divided the marital estate?

¶29 We review a district court’s division of marital property to determine whether the findings on which it relied are clearly erroneous. See In re Marriage of Stufft (1996), 276 Mont. 454, 459, 916 P.2d 767, 770. If the findings are not clearly erroneous, we will affirm the distribution of property unless the district court abused its discretion. See Stufft, 276 Mont. at 459, 916 P.2d at 770; Hogstad, 275 Mont. at 496, 914 P.2d at 588; In re Marriage of Smith (1995), 270 Mont. 263, 267-68, 891 P.2d 522, 525. In a marriage dissolution proceeding, the test for an abuse of discretion is whether the district court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. See In re Marriage of Meeks (1996), 276 Mont. 237, 242, 915 P.2d 831, 834.

¶30 The division of marital property is governed by § 40-4-202, MCA. Pursuant to the statute, the district court has broad discretion to distribute the marital estate in a manner which is equitable to each party according to the circumstances of the case. See In re Marriage of Maedje (1994), 263 Mont. 262, 265, 868 P.2d 580, 582.

¶31 Tammi contends that the District Court erred when it found that a used motorcycle and a one-half interest in a used Ford van were Monte’s premarital property. She contends that he wrote the checks for the items during the marriage, and therefore, that she is entitled to a share of their value. Monte, on the other hand, asserts that there was no testimony to support Tammi’s alleged interest in the motorcycle or van.

¶32 Unless a statutory exception exists to call into question the joint nature of the property, such as in the case of property acquired by gift or devise, property acquired during the marriage is generally presumed to be marital property in which both spouses share an interest and which is subject to equitable apportionment by the district court. See § 40-4-202, MCA. Here, Monte purchased the motorcycle with a $1,600 check on February 28,1994, and his interest in the Ford van with a check dated January 2,1995. Both checks were admitted at trial, but there was only limited testimony about the acquisition of the motorcycle and Ford van. Even if the parties’ testimony did not explicitly establish when the motorcycle and van were acquired, the record clearly reflects that the motorcycle and Ford van were acquired during the marriage. Moreover, Monte has never suggested that they were acquired by gift, devise, or some other means which would lead us to consider them his exclusive property. Accordingly, we conclude that the District Court erred when it ignored the record and found that the motorcycle and Ford van were Monte’s premarital property, and when on that basis it failed to include those assets in its calculation of the parties’ respective shares of the marital estate.

¶33 Tammi also contends that the District Court erred when it failed to award her a share of the appreciated value of Monte’s one-half interest in the plane that he owns with his father and a share of the appreciated value of the Mission Aviation inventory.

¶34 Tammi admits that Monte’s business inventory was property that he owned prior to their marriage, and as such, she asserts an interest in only the appreciated value of the inventory. She used figures from the parties’ tax forms to assert that the value of the inventory increased $24,500 during the marriage. At trial, however, Monte testified that the 1993 tax form on which Tammi relies underestimated the inventory and that during the course of the marriage the business inventory had in fact been slightly reduced. He submitted that the current value of the inventory was $26,100, and the District Court adopted that figure; that value was $200 greater than the premarital value adopted by the District Court.

¶35 As stated above, the District Court has broad discretion to achieve an equitable distribution of the marital estate. Similarly, it has discretion to adopt any reasonable valuation of property that is supported in the record. See In re Marriage of Luisi (1988), 232 Mont. 243, 247, 756 P.2d 456, 459. The determination of property valuation is a factual issue within the province of the district court. See Meeks, 276 Mont. at 247, 915 P.2d at 838. We conclude that the value assigned by the District Court to the inventory was supported by the record, was not clearly erroneous, and that the District Court did not act arbitrarily without employment of conscientious judgment or exceed the bounds of reason when it distributed the property.

¶36 Because the District Court must make an equitable division of the marital property, the fact that it did not award Tammi an equal share of the appreciated inventory does not necessarily mean that it erred or that it abused its discretion. Rather, in light of the overall division of the marital estate, we conclude that the District Court did not abuse its discretion when it declined to award Tammi a share of the minimal appreciation in the business inventory.

¶37 Tammi also contends that she is entitled to a share of what she alleges is the appreciated value of Monte’s interest in the plane. The District Court found that the plane in which Monte currently owns a one-half interest with his father constituted Monte’s premarital property. Although Monte purchased the plane during the marriage, the funds which he used to purchase the plane can be traced directly to the proceeds from the sale of the plane he owned prior to the marriage. Tammi claims, however, that the plane has a value of $57,000, based on its list price in a sale publication, and that because Monte allegedly used $6,000 of marital income, as well as his own labor, to improve the plane during the marriage, she is entitled to a share of his interest.

¶38 Monte testified at trial that he received $25,000 from the sale of a plane that he owned prior to the marriage. He also testified that he invested $16,000 from the proceeds of that sale to purchase the plane that he currently owns with his father, and that he later gave his father another $6,000 from the proceeds to complete repairs and work on the second plane. Also in the record was testimony that the value of Monte’s interest in the plane that he owns with his father is approximately the same as the value of the plane that he owned prior to the marriage.

¶39 Tammi’s only basis for her assertion that the plane is worth $57,000 is the price at which Monte and Wayne have listed it for sale. Without a sale, however, that price does not necessarily reflect the plane’s value. Furthermore, the only basis for her assertion that the $6,000 check to Wayne was marital income, as opposed to the remainder of Monte’s proceeds from the sale of his first plane, was the fact that it was written during the marriage and after they had returned from Alaska where Monte had earned the majority of his income that year. Given the entirety of the record and absent some other proof from Tammi, it is difficult to ascertain whether the plane has in fact appreciated above and beyond the value of Monte’s premarital interest in the first plane. As stated above, we will not substitute our judgment for the District Court’s. Accordingly, we conclude that there is substantial credible evidence to support the District Court’s findings, its findings regarding Monte’s interest in the plane were not clearly erroneous, and the District Court did not abuse its discretion when it found that Tammi was not entitled to a share of Monte’s interest in the plane.

¶40 We affirm the District Court’s distribution of the plane and business inventory. We reverse the District Court’s exclusion of the motorcycle and the Ford van from the marital estate, and remand to the District Court for reconsideration of the property distribution after inclusion of those items in the marital estate.

ISSUE 3

¶41 [18] Did the District Court err when it declined to hold Monte in contempt of court?

¶42 Although contempt orders by a district court are final and generally not reviewable by this Court, we make an exception in marriage dissolution proceedings. See Dreesbach, 265 Mont. at 223-24, 875 P.2d at 1022; In re Marriage of Boharski (1993), 257 Mont. 71, 77, 847 P.2d 709, 713. Our review, however, is limited to whether the district court acted within its jurisdiction and whether the evidence supports the findings. See In re Marriage of Sullivan (1993), 258 Mont. 531, 539-40, 853 P.2d 1194, 1200.

¶43 Tammi asserts that the District Court erred when it failed to hold Monte in contempt for his alleged multiple violations of the stipulation. She contends that Monte violated the stipulation when he: (1) failed to pay child support; (2) disturbed her peace; (3) encumbered the van and mobile home; and (4) assisted Wayne’s effort to evict her from the mobile home. The claim relies on her allegation that the District Court erred when it ignored substantial credible evidence and, in so doing, abused its discretion when it failed to find Monte in contempt.

¶44 Although it is well-established that we make an exception to review a district court’s contempt decision in family law matters, the majority of our prior cases have addressed review of a court’s order to find a party in contempt. See Dreesbach, 265 Mont. 216, 875 P.2d 1018; Sullivan, 258 Mont. 531, 853 P.2d 1194; Boharski, 257 Mont. 71, 847 P.2d 709; In re Marriage of Sessions (1988), 231 Mont. 437, 753 P.2d 1306. In that context, we agree that our. review should be limited to determine whether the record supported the district court’s findings. In a case such as this, however, where we are being asked to review a district court’s decision not to find a party in contempt, we recognize that a different standard of review is appropriate.

¶45 A district court has the responsibility to enforce its own orders. See In re Marriage of Boyer (1995), 274 Mont. 282, 289, 908 P.2d 665, 669. We stated in In re Marriage of Jacobson (1987), 228 Mont. 458, 464, 743 P.2d 1025, 1028, that contempt is a discretionary tool of the court to enforce compliance with its decisions. We also stated that its power to inflict punishment by contempt is necessary to preserve the dignity and authority of the court. See also Woolf v. Evans (1994), 264 Mont. 480, 483, 872 P.2d 777, 779. Accordingly, where a district court has found that there is no such need to enforce compliance with its order or that the actions of a party do not present a challenge to its dignity and authority, we will not reverse its decision absent a blatant abuse of discretion.

¶46 Here, the District Court found that Tammi failed to satisfy her burden to prove the allegations of contempt, and that Monte offered evidence that he was not in violation of the stipulation. Upon review of the record, we conclude that it supports the District Court’s findings; Tammi’s assertion that the District Court ignored substantial credible evidence to make its decision is insufficient to find that it erred when there is also substantial credible evidence to support the decision. Accordingly, we hold that the District Court’s findings related to the contempt issue are not clearly erroneous. Moreover, even if we agreed with Tammi’s factual allegations and could conclude with certainty from the record that Monte violated the terms of the stipulation in the ways that she alleges, the District Court’s decision to find him in contempt would still be a matter within its discretion, based upon its perceived need to enforce its order or the threat to its authority. Under the circumstances in this case, we find no abuse of discretion.

¶47 We affirm the District Court’s decision to award custody to Monte and its decision that Monte was not in contempt of court. We also affirm the District Court’s distribution of the interest in the plane and business inventory, but we reverse its findings related to the motorcycle and Ford van and remand to the District Court for a reconsideration of the property distribution, if necessary, after inclusion of the van and motorcycle in the marital estate.

CHIEF JUSTICE TURNAGE, JUSTICES LEAPHART, NELSON and REGNIER concur.

      . This subsection of § 40-4-212, MCA, was repealed by the 1997 Legislature effective October 1, 1997. See §§ 15 and 43, Ch. 343, L. 1997. Since this subsection of the statute was in effect at the time of this proceeding, we will apply it here.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LAWRENCE EARL SWEET, Defendant and Appellant.
    No. 97-231.
    Submitted on Briefs December 18, 1997.
    Decided February 12, 1998.
    1998 MT 30.
    55 St.Rep. 110.
    287 Mont. 336.
    954 P.2d 1133.

      For Appellant: Deirdre Caughlan, Attorney at Law, Butte.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General; Helena; Robert M. McCarthy, Butte-Silver Bow County Attorney; Samm Cox, Deputy Comity Attorney; Butte.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶1 Lawrence Earl Sweet was charged by information filed in the District Court for the Second Judicial District in Silver Bow County with two counts of criminal sale of dangerous drugs in violation of § 45-9-101, MCA (1995). Following a jury trial, Sweet was convicted of both offenses and sentenced to two consecutive ten-year sentences. Sweet appeals the jury’s verdict and the District Court’s order which denied his motion to dismiss. We affirm the jury’s verdict and the judgment of the District Court.

¶2 The issues on appeal are:

¶3 1. Did the District Court err when it denied Sweet’s motion to dismiss based on the State’s alleged negligent suppression of evidence?

¶4 2. Was there sufficient evidence to support the jury’s verdict?

FACTUAL BACKGROUND

¶5 Officer Jerry Stradinger, a detective with the Butte-Silver Bow Sheriff’s Department, recruited a confidential informant to purchase drugs in the Butte-Silver Bow community as part of Detective Stradinger’s drug sale investigations. The confidential informant was Dennis O’Donnell, a former and subsequent drug abuser.

¶6 On November 2, 1995, Stradinger met with O’Donnell to effectuate a drug purchase. Stradinger searched O’Donnell and his vehicle, then fitted him with a transmitting device known as a “body wire.” The body wire allowed Stradinger to monitor any drug transaction or conversation which occurred in O’Donnell’s presence. Stradinger gave O’Donnell $140 with which to purchase the drugs. O’Donnell proceeded to the location where the drug purchase was to be made. Stradinger followed O’Donnell in his own vehicle, monitored O’Donnell’s activities through the body wire, and tape-recorded conversations transmitted from the body wire.

¶7 The intended drug purchase at the first residence to which O’Donnell was sent did not occur; however, while at the first residence O’Donnell arranged to buy drugs from an individual he identified as Lawrence Earl Sweet. Sweet’s residence was located in Walkerville, Montana, a municipality north of Butte. O’Donnell left the first location and indicated to Stradinger by way of the body wire that he was going to Sweet’s house where a drug sale would take place.

¶8 Stradinger followed O’Donnell to Sweet’s residence and began surveillance nearby. He watched O’Donnell enter Sweet’s home and heard him clearly identify Sweet on the body wire. According to Stradinger, O’Donnell purchased marijuana from Sweet and left the house. Stradinger followed O’Donnell to a prearranged meeting place where O’Donnell gave him four bags, each containing one-eighth of an ounce of marijuana.

¶9 On November 11, 1995, Stradinger again fitted O’Donnell with a body wire and set up a surveillance at a distance from Sweet’s home. On that occasion, O’Donnell made a second purchase of marijuana from Sweet. At trial, Stradinger testified that he could not recall whether he searched O’Donnell prior to the second transaction. He also testified that prior to arriving at Sweet’s residence in Walkerville, on that occasion, O’Donnell went into a convenience store “for change.” When they arrived at Sweet’s house, Stradinger recorded the conversation picked up by O’Donnell’s body wire. He heard O’Donnell knock at the door to the residence, enter, and identify Sweet.

¶10 During the second transaction, Sweet told O’Donnell that he did not have anything to sell and that he would have to make a phone call. Sweet sent O’Donnell back outside to wait. According to Stradinger, fifteen minutes later Sweet came out of his house and summoned O’Donnell to Sweet’s garage, where a drug transaction occurred. O’Donnell left Sweet’s residence and Stradinger followed him to the prearranged meeting place where O’Donnell gave Stradinger two one-eighth ounce bags of marijuana.

¶11 Sweet was charged on April 22, 1996, by information filed in the District Court for Silver Bow County, with two counts of felony criminal sale of dangerous drugs in violation of § 45-9-101, MCA (1995). Sweet pled not guilty to both offenses. On September 25,1996, following the State’s refusal to disclose O’Donnell’s identity without an order from the District Court, Sweet field a motion for the disclosure of O’Donnell’s identity and location. On September 27,1996, the District Cotut entered an order which advised:

[T]he State is hereby ordered to disclose the identity of the informant, the location of the informant if known, and any documents, statements or information within its control that relate to the credibility of the informant. Failure to abide by this order will result in dismissal of this case

¶12 On September 30, 1996, the State formally disclosed the identity of Dennis O’Donnell and gave his last known home address. On October 2, 1996, the State informed Sweet that O’Donnell had more recently been located at the Montana Chemical Dependency Center (MCDC) where he was receiving treatment for chemical dependency. The State agreed to produce O’Donnell for an interview on October 3,1996. On the date scheduled for the interview, the State advised Sweet that O’Donnell had been absent from MCDC for approximately seven days, and that his whereabouts were unknown.

¶13 Sweet moved to dismiss the information filed against him based upon his belief that the State negligently suppressed evidence related to the confidential informant. On October 8,1996, the District Court denied Sweet’s motion to dismiss.

¶14 A trial was held on October 8 and 9, 1996. Sweet moved for a directed verdict at the close of the State’s case. The District Court denied Sweet’s motion. A jury found Sweet guilty of two counts of criminal sale of dangerous drugs in violation of § 45-9-101, MCA (1995). On December 13,1996, the District Court sentenced Sweet to two concurrent ten-year sentences at the Montana State Prison.

ISSUE 1

¶15 Did the District Court err when it denied Sweet’s- motion to dismiss based on the State’s alleged negligent suppression of evidence?

¶16 On appeal, Sweet argues that because the State’s proof depended upon the testimony of its confidential informant, minimal observations of Stradinger, and two poor-quality tape recordings of the alleged drug sale, the availability of the confidential informant was critical. Sweet contends that the jury must be able to observe the confidential informant’s demeanor and evaluate his testimony. Sweet notes that the District Court found that O’Donnell “may be able to give testimony that is relevant to the defense of entrapment,” and that O’Donnell was advised as early as November 30, 1995, that he may be a witness in this case. According to Sweet, the claim against him should have been dismissed with prejudice because the State’s failure to keep track of O’Donnell constitutes a negligent suppression of important evidence and a violation of the District Court’s order to produce the witness.

¶17 The State, on the other hand, contends that Sweet did not establish that O’Donnell’s testimony would have raised a reasonable doubt about Sweet’s guilt. It farther argues that there is no evidence on the tapes, or anywhere else, that would suggest that Sweet lacked criminal intent, as required for the defense of entrapment, or was lured into committing a crime which he had no intention of committing. The State contends that the District Court correctly concluded that it did not negligently suppress evidence because it was not in direct control of the confidential informant and because both parties had the power to subpoena him. It further maintains that the District Court’s previous determination that the confidential informant “may be able to give testimony that is relevant to the defense of entrapment” is not determinative for purposes of the motion to dismiss.

¶18 The grant or denial of a motion to dismiss in a criminal case is a question of law. See State v. Hansen (1995), 273 Mont. 321, 323, 903 P.2d 194, 195. Our standard of review is plenary; we review the decision to determine whether the conclusion of law is correct. See Hansen, 273 Mont. at 323, 903 P.2d at 195.

¶19 In State v. McLeod (1987), 227 Mont. 482, 487, 740 P.2d 672, 675, we held that in order to compel disclosure of a confidential informant the defendant must adduce “some evidence of entrapment before the government is called upon to disclose to the defendant the identify of an informant” (quoting United States v. Sharp (6th Cir. 1985), 778 F.2d 1182, 1187). In its order which required the State to disclose O’Donnell’s identity, the District Court found that O’Donnell “may be able to give testimony that is relevant to the defense of entrapment,” as is required by our holding in McLeod. However, as argued by the State, we conclude that this finding is not determinative of whether the District Court erred when it denied Sweet’s motion to dismiss.

¶20 Although the District Court found that O’Donnell’s testimony may be relevant to the defense of entrapment, the standard for materiality required for a reversal of a conviction is greater than for the disclosure of the identify of a confidential informant. In State v. West (1992), 252 Mont. 83, 826 P.2d 940, we held that in order to reverse a conviction the defendant must show that the lost or destroyed evidence had exculpatory value which would have changed the outcome of the trial. Specifically, we stated:

[W]hen the State, due to negligence, loss, replacement, or destruction, is unable to produce certain physical evidence in the prosecution of the case, reversal of a conviction is not necessary where the actual objects were not.vital to the defense, were not exculpatory in nature, and the result would not have been affected by their introduction.

West, 252 Mont. at 87, 826 P.2d at 943. We quoted the United States Supreme Court for the proposition that

[w]hatever the duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

West, 252 Mont. at 87, 826 P.2d at 943 (quoting California v. Trombetta (1984), 467 U.S. 479, 488-89, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413, 422).

¶21 We agree with the State that Sweet did not establish that O’Donnell’s testimony would change the outcome of the trial or raise a reasonable doubt about his guilt.

¶22 In State v. Cannon (1984), 212 Mont. 157, 167, 687 P.2d 705, 710, we set forth the following elements of entrapment: (1) criminal intent or design originating in the mind of the police officer or informer; (2) absence of criminal intent or design originating in the mind of the accused; and (3) luring or inducing the accused into committing a crime he had no intention of committing. There is a distinction between inducing a person to commit an unlawful act, and setting a trap to catch him or her in the execution of a criminal design of his or her own conception. See Cannon, 212 Mont. at 167, 687 P.2d at 710. Merely affording the defendant the opportunity or facility for committing an offense is not entrapment. See § 45-2-213, MCA.

¶23 Both transactions between Sweet and O’Donnell were recorded on tape. O’Donnell approached Sweet and inquired whether Sweet would sell him marijuana. Sweet then provided O’Donnell with marijuana in exchange for money. Sweet was merely presented with the opportunity to commit the crime of criminal sale of dangerous drugs. There is no evidence on the tapes derived from the body wire to suggest that Sweet lacked criminal intent and was lured into committing a crime which he had no intention of committing.

¶24 Moreover, at the times Sweet sought an interview with him, O’Donnell was neither an employee of the Butte-Silver Bow Law Enforcement Agency nor the County Attorney’s office and thus was not under the direct authority of the State. Unlike cases where physical evidence is lost or destroyed, the State cannot be held responsible for the unavailability of someone over whom it has no control.

¶25 Law enforcement agencies do have a responsibility to make reasonable efforts to secure the testimony of a confidential informant when his or her testimony becomes necessary. However, there was evidence from which the District Court could find that that was done in this case. Stradinger informed O’Donnell, in a confidential informant questionnaire, that O’Donnell may have to testify in court proceedings regarding the investigations in which he participated. O’Donnell read and signed the questionnaire. The State subpoenaed O’Donnell to testify approximately one week prior to the date set for trial and five days after the District Court ordered the disclosure of O’Donnell’s identity and location. The State was simply unable to locate O’Donnell once he walked away from the treatment center.

¶26 Furthermore, we conclude that Sweet has not established prejudice from O’Donnell’s absence. The entire transaction between O’Donnell and Sweet was recorded on tape for the jury to hear. Stradinger, who was present to testify at trial, monitored both transactions, from start to finish, in person and through O’Donnell’s body wire from a location near Sweet’s residence. Based on these facts, we conclude that the District Court did not err when it denied Sweet’s motion to dismiss based on suppression of evidence.

ISSUE 2

¶27 Was there sufficient evidence to support the jury’s verdict?

¶28 On appeal, Sweet contends that the evidence presented to the jury was inadequate to support the jury’s verdict. He argues that because Stradinger and another law enforcement officer controlled the recording of the body wire, they were able to turn it on and off at their discretion and thereby seriously damage the integrity of the tapes. Sweet notes that Stradinger could not remember whether he had searched O’Donnell’s vehicle prior to the November 11, 1995, transaction, that he allowed O’Donnell to stop at a convenience store to get change for the “buy money” just before the drug transaction, and that he neither observed O’Donnell while he was in the store nor searched his person or vehicle after he exited the store. Sweet adds that Stradinger himself testified that all of his original notations with respect to his contacts with O’Donnell are now destroyed.

¶29 Finally, Sweet maintains that the entire case turns on the credibility of O’Donnell, the one witness whom the State failed to produce. He concludes that once all of these facts are added up, the evidence is insufficient to establish proof beyond a reasonable doubt that Sweet committed the offenses charged.

¶30 The State maintains that the evidence establishes that Sweet sold marijuana to O’Donnell on two separate occasions and fully supports the conviction for the offense of criminal sale of dangerous drugs.

¶31 Recently, in State v. Plenty Hawk (1997), [285 Mont. 183], 948 P.2d 209, 210, we held that the standard of review for sufficiency of evidence to sustain a criminal conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. The elements of the crime of criminal sale of dangerous drugs are set forth in § 45-9-101(1), MCA (1995): “A person commits the offense of criminal sale of dangerous drugs if the person sells, barters, exchanges, gives away, or offers to sell, barter, exchange, or give away any dangerous drug, as defined in 50-32-101.” Marijuana is defined in § 50-32-101, MCA, as a dangerous drug.

¶32 According to the record, the evidence in this case demonstrated that on the two occasions when Sweet sold marijuana to O’Donnell, O’Donnell was fitted with a body wire, he was searched for any contraband that might be on him prior to going to Sweet’s residence, and he was given enough money to purchase a specified amount of drugs. During the transaction, a detective set up surveillance nearby and listened to and recorded the conversations that occurred inside Sweet’s house. The detective watched O’Donnell go into Sweet’s house with the money, he listened to O’Donnell clearly identify Sweet on the body wire and make the drug purchase, and he watched O’Donnell leave the house with the marijuana. The jury heard the testimony of the detective, as well as the tape recordings of the drug transactions. After viewing this evidence in a light most favorable to the prosecution, we conclude that any reasonable trier of fact could have found, beyond a reasonable doubt, that Sweet sold marijuana to O’Donnell on two occasions.

¶33 Accordingly, we conclude that there was sufficient evidence to support the jury’s verdict and that the trial court did not err when it denied Sweet’s motion to dismiss.

JUSTICES REGNIER, LEAPHART, NELSON and HUNT concur.


author: JUSTICE LEAPHART

text:
    SPIKER COMMUNICATIONS, INC., a Montana Corporation, Plaintiff and Appellant, v. STATE OF MONTANA, through its DEPARTMENT OF COMMERCE and DEPARTMENT OF ADMINISTRATION; JON NOEL, Director of Department of Commerce; MATTHEW COHN, Director of Montana Tourism Development and Promotion Division; and NYLA J. JOHNSON, ContractsManager, Purchasing Bureau, Department of Administration, Defendants and Respondents.
    No. 97-343.
    Submitted on Briefs February 5, 1998.
    Decided February 18, 1998.
    1998 MT 32.
    55 St.Rep. 114.
    287 Mont. 345.
    954 P.2d 1145.

      For Appellant: Christopher B. Swartley, Jon G. Beal; Datsopoulos, MacDonald & Lind, Missoula.
    For Respondents: Norman C. Peterson, Agency Legal Services, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Appellant Spiker Communications, Inc. (Spiker) appeals from the order of the Fourth Judicial District Court, Missoula County, granting Respondent State of Montana’s motion for change of venue and ordering venue moved to the First Judicial District Court, Lewis and Clark County. We reverse and remand.

¶2 Spiker raises the following issues on appeal:

¶3 1. Did the District Court err in granting the State’s request for change of venue when the State failed to object to venue in its first filing in the District Court?

¶4 2. Did the District Court err in changing venue from Spiker’s county of residence to Lewis and Clark County, the venue designated as the only proper venue in the State’s Request for Bid Proposal?

We find issue one dispositive, and, therefore, we will not address issue two.

Factual and Procedural Background

¶5 In October 1995, the purchasing bureau of the Department of Administration (the Bureau) released a request for proposal (RFP) to Spiker and to Wendt Advertising, qualified businesses, seeking to award a contract to provide marketing and advertising for the Montana Tourism Development and Promotion Division of the Department of Commerce. The RFP was issued in accordance with § 18-4-304, MCA, and § 2.5.602, ARM, which require that bid proposals be sealed and kept confidential. Both Spiker and Wendt Advertising responded with formal, signed proposals.

¶6 According to Spiker, on November 27,1995, Spiker informed the Bureau’s contracts manager that Spiker’s confidential information had been provided to Wendt Advertising. The next day, Spiker notified the Bureau in writing of the irregularity in the procurement process. A few days later, Matthew Cohn (Cohn), Director of the Montana Tourism Development and Promotion Division, informed Spiker that he had shared the information contained in Spiker’s RFP with Wendt Advertising.

¶7 On January 4, 1996, Cohn notified Spiker that the State was awarding the contract to Wendt Advertising. Spiker again notified the Bureau of the alleged irregularities in the procurement process, but the Bureau still did not conduct an internal review of the complaint. Spiker then contacted the Director of the Department of Commerce, who allegedly told Spiker that it was not harmed by Wendt Advertising’s knowledge of the information contained in Spiker’s RFP.

¶8 In July 1996, Spiker, a Montana corporation with its principal place of business in Missoula, Montana, filed a complaint in Missoula County, claiming that the State had breached the Montana Procurement Act, §§ 18-4-121 through 18-4-407, MCA. On September 18, 1996, the State filed a notice of appearance of counsel. The parties disagreed as to whether the complaint was subject to the requirements of the Tort Claims Act and, therefore, whether Spiker needed to comply with the 120-day administrative claim investigation period prior to filing a complaint against the State. See § 2-9-301, MCA. Rather than litigate the issue, the parties stipulated that the State would be given an additional 90 days in which to investigate the claim and respond and that its response would not include a motion to dismiss for failure to properly serve any individual defendant or for failure to comply with the Tort Claims Act. On September 30, 1996, the State filed the stipulation, together with a motion for extension of time in which to respond to the complaint. The District Court granted the State’s stipulation and motion.

¶9 On December 13, 1996, the State filed a motion to dismiss and a motion for change of venue. The parties briefed the issues, and, on May 20, 1997, the District Court ordered that venue be changed to Lewis and Clark County. Spiker appeals from this order.

Discussion

¶10 Under Rule 12(b)(ii), M.R.Civ.P, “if the county designated in the complaint is not the proper county for trial of the action, the defendant must at the time of defendant’s first appearance request by motion that the trial be had in the proper county.” Spiker argues that the State’s filing of a notice of appearance of counsel and of a motion for extension of time constitute appearances in which the issue of venue should have been raised. The State argues that while the right to move for a change of venue can be waived by failing to file a motion for change of venue in conjunction with a responsive pleading, it is not waived by the simple act of filing a notice which informs the district court that the defendant is represented by counsel. We agree with Spiker that by filing a notice of appearance of counsel and motion for extension, the State “appeared” in the District Court, as that term is used in Rule 12(b).

¶11 Acts of a defendant sufficient to constitute an appearance are set forth in § 25-3-401, MCA. This section states: “A defendant appears in an action when he answers, files a motion, or gives the plaintiff written notice of his appearance or when an attorney gives notice of appearance for him or has such appearance entered in open court.” Section 25-3-401, MCA. Under the plain language of this statute, the State appeared in this action by filing a notice of appearance of counsel.

¶12 We applied § 25-3-401, MCA, in holding that the defendants had waived their objections to personal jurisdiction in Spencer v. Ukra (1991), 246 Mont. 430, 804 P.2d 380. In Spencer, the district court entered a default judgment against the defendants after they failed to appear. The defendants filed a motion to set aside the default pursuant to Rules 55(c) and 60(b), M.R.Civ.P. Spencer, 804 P.2d at 381. Subsequently, the defendants filed two stipulations in the district court, one providing that the default be set aside and the defendants be given 20 additional days in which to respond and the other that they be given additional time in which to respond to discovery requests. Spencer, 804 P.2d at 382. The district court entered an order setting aside the default and granting the defendants 20 days to respond. Spencer, 804 P.2d at 382. Several months later, on motion of the-defendants, the court dismissed the action for lack of personal jurisdiction. Spencer, 804 P.2d at 382.

¶13 The plaintiff appealed to this Court, arguing that any objection to personal jurisdiction had been waived. Spencer, 804 P.2d at 382. We noted that under Rule 12, M.R.Civ.P, an objection to lack of personal jurisdiction must be made at the time of the defendants’ initial appearance in the district court. Spencer, 804 P.2d at 382. Pointing to the language contained in § 25-3-401, MCA, we held that the “defendants, having moved the court to set aside the default in their initial appearance, without at the same time preserving the question of lack of personal jurisdiction, consented to the general jurisdiction of the court....” Spencer, 804 P.2d at 383.

¶14 Similarly, in this case, the State voluntarily filed a notice of appearance and moved the court for an extension of time in which to answer without objecting to venue. The State argues that the notice of appearance was merely a “stock document” giving notice to the court that the State was represented by the Agency Legal Services Bureau. However, the State cites to no authority in Montana that supports a distinction between an appearance in a “stock document” and an appearance in a more substantive motion. Thus, we hold that both of the State’s filings constitute appearances in the District Court. Under the clear language of Rule 12(b)(ii), M.R.Civ.P., the State should have included its request that venue be changed to Lewis and Clark County in its notice of appearance of counsel. Because it failed to do so, we hold that the State waived any objection to venue.

¶15 Based on the foregoing, we reverse and remand to the Fourth Judicial District Court, Missoula County, for further proceedings.

JUSTICES NELSON, REGNIER, GRAY and HUNT concur.