author: MR. JUSTICE SHEEHY

text:
    In re the MARRIAGE OF MICHELLE JEAN ENSIGN, Petitioner and Appellant, and GEORGE DOUGLAS ENSIGN, Respondent and Respondent.
    No. 86-568.
    Submitted on Briefs April 16, 1987.
    Decided July 2, 1987.
    739 P.2d 479.

      Davidson & Poppler, Doris M. Poppler, Billings, for petitioner and appellant.
    Jock B. West, Billings, for respondent and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Michelle Jean Ensign appeals the judgment of the District Court, Thirteenth Judicial District, County of Yellowstone. We remand the case for determination of a joint custody plan and a determination of maintenance.

Michelle and George Ensign were married November 20, 1971 in Billings, Montana. They had two children, Sam, born November 17, 1972 and Matt, born December 20, 1974. George is employed as a tenured teacher by School District No. 2 in Billings, and holds an M.A. in Education plus 45 credits. Michelle has a high school education, and has had no further schooling or training. She married George at age 18 and was a fulltime mother and homemaker for 14 years. At the time of trial, Michelle was working two minimum wages jobs, six days a week, in Red Lodge, Montana. George’s net salary is $1,781.12 per month. Michelle’s net salary is approximately $784.00 per month.

Michelle filed a petition for dissolution of marriage on February 13, 1985 and an amended petition February 28, 1985. On August 13, 1985, Michelle obtained a final decree of dissolution by default. George made a motion to set aside the default judgment, such motion being granted August 21, 1985. The matter came before the District Court, sitting without a jury, on June 30, 1986. The District Court issued findings of fact, conclusions of law and a decree of dissolution September 6, 1986.

Michelle appeals the District Court’s findings of fact, conclusions of law and judgment on the following issues:

1. Did the trial judge err by failing to make final decisions as to the sale of the family home, a maintenance award to the wife and a joint custody plan, prior to his retirement from the bench?

2. Does a newly appointed judge have jurisdiction to make findings in a case which he or she did not hear?

3. Did the District Court err in failing to use the Carlson formula in determining child support for the minor children of the parties?

Under issue No. 1, Michelle argues that the final decree was not final since the decree reserved the question of the entitlement to and the amount of a maintenance award and also reserved the formulation of a final joint custody plan until the sale of the family home was resolved. However, under Section 40-4-108(1), MCA, a decree of dissolution of marriage is final when entered, subject to the right of appeal. Under Section 40-4-104, MCA, a district court is required to enter a decree of dissolution if:

“(a) the court finds that one of the parties, at the time the action was commenced, was domiciled in this state or was stationed in this state while a member of the armed services and that the domicile or military presence has been maintained for 90 days next preceding the making of the findings;
“(b) the court finds that the marriage is irretrievably broken, which findings shall be supported by evidence:
“(i) that the parties have lived separate and apart for a period of more than 180 days next preceding the commencement of this proceeding; or
“(ii) that there is serious marital discord which adversely affects the attitude of one or both of the parties towards the marriage;
“(c) the court finds that the conciliation provisions of the Montana Conciliation Law and of 40-4-107 either do not apply or have been met; and
“(d) to the extent it has jurisdiction to do so, the court has considered, approved, or made provision for child custody, the support of any child entitled to support, the maintenance of either spouse, and the disposition of property.”

We note in particular Section 40-4-104(l)(d), which has been amended by the 1985 legislature. That subsection formerly read that the court could provide “for a separate, later hearing to complete [the] matters” of child custody, child support, maintenance and property division. The provision for the bifurcated process of granting a dissolution of marriage and later determining the specific terms of property settlement and child custody was deleted by the Montana legislature in an attempt to prevent the situation at bar; namely the prolonged fight over custody, child support and maintenance.

We therefore hold it was error for the District Court to fail to establish a final joint custody plan for the minor children and maintenance award for Michelle Ensign. While the District Court made extensive findings and perceptively outlined the parties’ dispute over finances and the sale of the family home, its resolution of those disputes was somewhat ambiguous. In findings Nos. 21 through 23, the court stated:

“21. The fact of the matter is that respondent’s own figures demonstrate that in his present circumstance, his expenses exceed his income by at least $200.00 per month, even without paying anything to petitioner for any purpose. Therefore, keeping the home, which is the anchor to such losing situation, is of questionable advisability unless it is assumed that doing so will preserve the real potential value of the home for later realization when market conditions improve, and that in the interim, having it for the children represents a significant benefit to them. But, for the reasons already discussed, the only way retention of the home can be accomplished with fairness to petitioner is for the respondent to buy her interest out. The evidence does not expressly1 demonstrate that this is within the capabilities of respondent to arrange, however, neither does it eliminate such a possibility. Therefore, it should be retained as an available option.
“22. In such circumstances, the respondent should be given the right to purchase, in 30 days from the date hereof, petitioner’s one-half interest in the family home, calculated on the basis of a market value of $85,000.00. In calculating the equity of the parties, a deduction of one-half of the usual real estate commission of 7% should be allowed. In addition, there is a loan outstanding to the Teacher’s Credit Union in the amount of $4,211.92 at the time of trial. It was incurred in connection with the financing of the family home. There is no evidence that it comprises a lien against the property, but it is not disputed that it is a home-related indebtedness, currently being paid by a deduction from respondent’s monthly paycheck. It is appropriate that the petitioner should bear one-half of the balance at the time of sale, to be implemented as a deduction from her share of the home sale proceeds, whether the sale is to respondent or another.
“23. If respondent either rejects such opportunity to buy petitioner’s interest, or does not do so within the 30 days allowed, the family home should be placed upon the market and sold, with the net proceeds divided equally.”

On one hand, the court stated that the sale of the home “should be retained as an available option,” on the other hand, the court, recognizing the inherent unfairness of allowing the husband to live in the family home without reimbursing the wife for her interest, set forth the terms of a 30 day buy-out or sale period. Further, the resolution of the joint custody plan and the maintenance award hinged on the sale of the home. It is therefore essential that the District Court implement its findings and establish a final custody plan and maintenance schedule through an appropriate order.

The second issue raised by Michelle is whether a newly appointed judge may make findings in a case which he or she did not hear. Under the Montana Uniform Marriage and Divorce Act, a court has continuing jurisdiction in matters of maintenance, support, property disposition and child custody. Sections 40-4-208, -211 and -219, MCA. While the new judge may need to hear new evidence in order to formulate the joint custody plan and to determine a maintenance schedule, the judge is also entitled to rely on the record established in the case. On remand both parties will have the opportunity to produce further evidence in support of a joint custody plan and maintenance.

The final issue is whether the District Court was required to use the child support formula set forth in In Re Marriage of Carlson (Mont. 1984), [214 Mont. 209,] 693 P.2d 496, 41 St.Rep. 2419. As we have previously stated, the Carlson formula is a suggested guideline. In Re Marriage of DiPasquale (Mont. 1986), [220 Mont. 497,] 716 P.2d 223, 226, 43 St.Rep. 557, 561. The District Court’s decision will be upheld absent a clear showing of abuse of discretion. In Re Marriage of Ryan (Mont. 1986), [222 Mont. 188,] 720 P.2d 691, 693, 43 St.Rep. 1163, 1165; In Re Marriage of Rolfe (Mont. 1985), [216 Mont. 39,] 699 P.2d 79, 82, 42 St.Rep. 623, 626. We find no evidence to indicate the District Court abused its discretion in determining child support payments in this case. However, on remand the District Court may need to reconsider the factors listed in Section 40-4-204(1), MCA, if the financial resources of the parties have changed since the decree was issued. It should be noted that on January 13, 1987, we also adopted suggested guidelines for courts to determine child support, now found in 44 St.Rep. 828, [227 Mont. 1,].

We remand this case to the District Court for a determination of a joint custody plan, a maintenance award and a settlement of the disposition of the family home.

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


source: Caselaw Access Project

author: MR. JUSTICE WEBER

license: Public Domain

text:
    JEAN PFAU, Plaintiff and Appellant, v. RICHLAND COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF MONTANA, Defendant and Respondent.
    No. 86-522.
    Submitted on Briefs April 30, 1987.
    Decided July 9, 1987.
    Rehearing Denied Aug. 18, 1987.
    739 P.2d 950.
    Robert L. Johnson, Lewistown, for plaintiff and appellant.
    Gene R. Jarussi, Keefer, Roybal, Hanson, Stacey and Jarussi, Billings, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiff Jean Pfau brought this action in the District Court of the Seventh Judicial District, Richland County, to recover damages for injuries she sustained when she fell at the Richland County Fairgrounds. The jury found the defendant Richland County not negligent. Mrs. Pfau appealed from the judgment entered on the verdict and the District Court’s denial of her motion for a new trial. We affirm.

The issue is whether the District Court erred in failing to grant Mrs. Pfau a new trial on the ground that the evidence was insufficient to justify the jury verdict.

On August 4, 1982, Jean Pfau, her husband, and her children were at the Richland County Fairgrounds setting up a booth for the fair which was to start the next day. About 8:00 or 9:00 p.m., Mrs. Pfau drove two of her children home. Around 10:30 or 11:00 p.m., she drove back to the fairgrounds to pick up her husband and third child.

As Mrs. Pfau passed underneath the pedestrian archway at the south gate of the fairgrounds she tripped and fell. Mrs. Pfau sued Richland County on the basis that the sidewalk was unsafe. After a jury trial, the 12 person jury came back with a verdict that Richland County was not negligent. After her motion for a new trial was denied, Mrs. Pfau appealed.

Did the District Court err in failing to grant Mrs. Pfau a new trial on the ground that the evidence was insufficient to justify the jury verdict?

In determining the sufficiency of the evidence, our standard is one of substantial evidence. As this Court recently stated in Clark v. Norris (Mont. 1987), [226 Mont. 43,] 734 P.2d 182, 185, 44 St. Rep. 444, 445:

“The standard of review is substantial evidence. If substantial evidence supports the case of the prevailing party the verdict will stand. The evidence will be viewed in a light most favorable to the party that prevailed at trial and, if the evidence conflicts, the credibility and weight given to the evidence is the province of the jury and not this Court. (Cite omitted.)”

This Court will especially not disturb a judgment on appeal where substantial evidence supports the judgment and the District Court has upheld the sufficiency of the evidence on a motion for a new trial. Keil v. Glacier Park, Inc. (1980), 188 Mont. 455, 461, 614 P.2d 502, 505. Simply put, the question before this Court is whether there is substantial evidence in the record upon which the jury could return a defense verdict.

After a careful review of the transcript, we conclude that there is substantial evidence in the record which supports the finding of the jury that Richland County was not negligent in the fall and. injuries suffered by Mrs. Pfau. At trial, Mrs. Pfau’s attorney called Daniel Pfau, Jean Pfau’s husband, Doris Goebel, the secretary-manager for the Richland County Fair, and Jean Pfau herself. The attorney for Richland County cross-examined Doris Goebel and Jean Pfau and called George Umback, the maintenance man for the Richland County Fairgrounds, as a witness.

All four witnesses testified as to the condition of the sidewalk where Mrs. Pfau fell. Doris Goebel testified that the sidewalk looked like a typical sidewalk in a county fairground, that some of the sidewalk was older and some of it was newer. She further testified that parts of the sidewalk were cracked and somewhat uneven, but generally the sidewalk was in normal condition and did not represent a hazard. George Umback also testified that the sidewalk did not look hazardous to him, was well-lighted, and was essentially in the same shape as it had been for the previous 12 years when he had worked at the fairgrounds. There is some contradiction in the testimony of the various witnesses with regard to the condition of the sidewalk. However, we are required to view the evidence in a light most favorable to the defendant. In addition, the credibility and weight to be given to the evidence is the province of the jury with which we will not interfere. Viewing the evidence in a light favorable to the defendant, we conclude there is substantial evidence to support the jury’s determination that the defendant was not negligent.

We affirm the District Court.

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


text:
    PATRICK EMICK, Plaintiff and Appellant, v. KEN KOCH and Gary Koch, d/b/a Central Auto, Defendants and Respondent.
    No. 86-601.
    Submitted June 10, 1987.
    Decided July 9, 1987.
    739 P.2d 947.

      Dunaway, O’Connor & Moe, Stewart R. Kirkpatrick argued, and William J. O’Connor, II, argued, Billings, for plaintiff and appellant.
    George T. Radovich argued, Billings, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Mr. Emick sued the defendants for misrepresentation and unfair practices in violation of state and federal statutes, in the sale of a used Chevy Blazer. After trial to the court, judgment was entered for defendants. The District Court concluded that Mr. Emick had failed to carry the burden of proof to show defendants’ liability. Mr. Emick appeals. We affirm.

The issues are:

1. Did the District Court err in concluding that Mr. Emick’s proof failed to show that Mr. Lightfield misrepresented the Blazer?

2. Did the District Court err in finding no violation of Section 30-14-103, MCA, et seq., when defendants failed to inspect the Blazer?

3. Did the District Court err in finding that defendants did not have the duty to inspect the Blazer prior to its sale?

Central Auto is a partnership of Kenneth Koch and Gary Koch. It sells used vehicles in Billings, Montana. Lee Lightfield used a portion of the space belonging to Central Auto to market his own vehicles. They had a working arrangement whereby Central Auto could sell vehicles belonging to Lee Lightfield on a consignment basis, and Central Auto would receive a commission for the sale.

Mr. Emick purchased a 1976 Chevrolet Rally Blazer off the Central Auto lot in October 1983. Lee Lightfield sold the Blazer to Mr. Emick. He told Mr. Emick that the Blazer was in good condition. Mr. Emick did not know that the Blazer was owned by Lee Lightfield. Mr. Emick test drove the Blazer before paying $5,250 to Central Auto for its purchase. Lee Lightfield signed the Central Auto sales receipt as the “salesman.” Central Auto transferred the money, less a lot fee and a percentage of the profit, to Lee Lightfield. The bill of sale indicated conspicuously on its face that the Blazer was being sold “as is.”

Mr. Emick testified that after he had the Blazer for several days, he became aware of the following defects:

(a) The gear ratio was too low;

(b) There was vibration in the steering wheel at speeds over 55 m.p.h.;

(c) The rear window did not operate properly;

(d) The roof had a pin hole leak;

(e) The odometer was crooked;

(f) The gas gauge didn’t work; and

(g) The radio antenna was loose.

Mr. Emick testified that he took the Blazer to a mechanic, but that mechanic did not testify at the time of trial. Mr. Emick testified that with the help of the mechanic, he observed that the A frame was cracked at the shock absorber mounting, the transmission leaked, the rings and rods were bad, and the brakes were not functioning properly. Mr. Emick testified that he contacted Central Auto and demanded his money back but that Central Auto refused to accept the return of the Blazer. Mr. Emick also testified that he had not repaired the Blazer by the time of trial. He did not state whether or not he continued to use the Blazer.

Mr. Emick brought suit against Central Auto, which brought in Lee Lightfield as a third-party defendant. Mr. Lightfield was dismissed without prejudice, by stipulation. At trial, Mr. Emick testified on his own behalf. Central Auto presented testimony by Ken Koch and by Janice Koch, the Central Auto employee who prepared the bill of sale.

The District Court found that Mr.. Emick had ample opportunity to inspect the Blazer before he bought it and concluded that the defects testified to by Mr. Emick were discoverable by reasonable inspection. The central finding and conclusion of the District Court was that none of the alleged defects “rendered the automobile inoperable or presented a safety hazard.” In addition the District Court concluded that Mr. Emick had failed to carry his burden of proof to show a breach of warranty and that he had failed to show that the vehicle did not conform to the representations made by Mr. Lightfield. Finally, the District Court concluded there had been no violation of the state or federal Consumer Protection Act and that Mr. Emick had failed to carry his burden to prove liability on the part of the defendants.

I

Did the District Court err in concluding that Mr. Emick’s proof failed to show that Mr. Lightfield misrepresented the Blazer?

Mr. Emick testified that when he asked Mr. Lightfield if there was anything wrong with the Blazer, the answer was, “No, it is a good truck.” He also testified that Mr. Lightfield told him he had driven the Blazer home and it was in wonderful shape. He argues that these representations were false, because of the defects he later discovered in the Blazer. The District Court concluded “[t]hat the evidence reveals that the defects discovered by the Plaintiff were discoverable by reasonable inspection and none of them rendered the automobile inoperable or presented a safety hazard.”

Mr. Emick presented only his own testimony about the defects in the Blazer. Although he stated that, in his opinion, the vibration in the steering wheel could be dangerous, he did not claim to be a mechanic or an expert witness in any sense. On cross-examination, he admitted that the gear ratio that he complained was too low is set at the factory.

It is within the power of the trier of fact to believe or disbelieve the testimony of a witness. Section 26-1-302, MCA. The testimony of Mr. Emick established that he had limited knowledge of automobiles and he certainly did not qualify in any sense as an expert. While Mr. Emick did testify with regard to certain claimed defects, his testimony had to be classified as weak. By his own admission Mr. Emick was allowed to test drive and examine the Blazer before he bought it. After hearing all of the evidence, the District Court concluded that Mr. Emick had failed to prove the automobile did not conform to the representations made by Mr. Lightfield. We hold the record supports the conclusion of the District Court that the proof failed to show a misrepresentation on the part of Mr. Lightfield.

II

Did the District Court err in finding no violation of Section 30-14-103, MCA, et seq., when defendants failed to inspect the Blazer?

The statutes cited are also known as the Consumer Protection Act (Act). Section 30-14-103, MCA, sets forth the general scope of the Act:

“Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful.”

We have carefully reviewed the slim transcript in this matter. Mr. Emick has submitted no proof, other than his own statements, that any of the defects in the Blazer were present. He submitted nothing to demonstrate any dangerous or latent defects other than his own statement that the vibration in the steering could be dangerous. We conclude that the District Court could reasonably determine that the defects in the Blazer as alleged by Mr. Emick are not unexpected in a used vehicle. We conclude that the record supports the holding that Mr. Emick failed to prove an unfair or deceptive act or practice which would justify application of the Act. We hold that the District Court was correct in concluding there was no showing that the defendants violated the Act.

Ill

Did the District Court err in finding that defendants did not have the duty to inspect the Blazer prior to its sale?

The District Court found that “. . . the Defendants, Ken Koch, Gary Koch and Central Auto, were totally without knowledge concerning the condition of the vehicle and, since this was a consignment sale, were without obligation to inspect the vehicle or examine it for defects.” Mr. Emick argues that the duty to inspect the Blazer should be placed upon the defendants because he was misled to believe that he was buying it from them. He says defendants are responsible under a theory of ostensible agency.

It may be true that a duty could be ascribed to defendants. However, no defects have been proven here, as discussed above. Mr. Emick has failed to prove his case. Where there has been a failure to establish a case against a supposed agent, it would be impossible to impute the same liability to the principal. Knowlton v. Sandaker (1968), 150 Mont. 438, 451, 436 P.2d 98, 105. Even if there is error in the District Court’s finding that defendants did not have the duty to inspect the Blazer prior to its sale, the error is harmless because it could not have altered the judgment.

Affirmed.

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


author: MR. JUSTICE GULBRANDSON

text:
    MAURICE DEAN PRIEST, Plaintiff, Respondent and Cross-Appellant, v. LAWRENCE TAYLOR, JR., Pearl r. Taylor, and Larry Kevin Taylor, Jr., a minor, Defendants, Appellants and Cross-Respondents. and LINDA PRIEST, Plaintiff and Appellant, v. LAWRENCE TAYLOR, JR., Pearl R. Taylor, and Larry Kevin Taylor, Jr., a minor, Defendants and Respondent.
    No. 86-218.
    Submitted on Briefs May 18, 1987.
    Decided July 13, 1987.
    740 P.2d 648.

      Landoe, Brown, Planalp, Kommers & Johnstone; Gene I. Brown, Bozeman, for the Taylors.
    Robert L. Stephens, Jr., Billings, for the Priests.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Defendants Lawrence Taylor, Jr., Pearl Taylor and Larry Kevin Taylor, Jr., (Taylors) appeal a Yellowstone County District Court order granting a new trial to the plaintiff Maurice Priest in this personal injury action. Mr. Priest and his wife Linda cross appeal from a district court order denying their motion to file an amended complaint. Maurice Priest also cross appeals on one issue relating to voir dire. The issues are,

1) whether the court properly granted a new trial to plaintiff because;

a) the court failed to specifically instruct the jury on defendants’ burden to show what part of plaintiff’s injuries were attributable to his preexisting condition; and/or,

b) the court failed to instruct the jury on the aggravation of plaintiff’s preexisting mental condition;

2) whether the court erred in denying the Priests’ motion to amend the complaint to include an action for loss of consortium;

3) whether the court improperly refused to allow plaintiff to use certain exhibits during voir dire. We affirm the grant of a new trial and the ruling in regard to voir dire. We reverse the order denying the motion to amend the complaint.

On August 28, 1982, plaintiff was involved in an automobile accident in Billings, Montana. A car driven by Larry Kevin Taylor, Jr., a minor, struck the plaintiff’s car from the rear. Prior to the accident, plaintiff had a history of rather severe mental illness and of injuries to his right shoulder and/or back.

In May 1984, plaintiff filed a complaint in Yellowstone County District Court alleging that Larry Kevin Taylor, Jr., had negligently and recklessly caused the accident. The complaint also sought to impute Larry’s alleged negligence to his parents, Lawrence and Pearl Taylor, under Section 61-5-108(2), MCA. On August 28,1985, plaintiff and his wife Linda moved (1) to amend the complaint by adding Linda Priest as a party plaintiff to assert her claim for loss of consortium, or (2) in the alternative, that the amended complaint be allowed to proceed as an independent, separate action on behalf of Linda. In October 1985, the court denied the motion to amend reasoning that 1) Rule 15, M.R.Civ.P., allows a party to amefid his pleadings under certain circumstances; 2) this motion to amend sought to add an additional person as a party to assert a new claim; 3) the wife was not a party as contemplated by Rule 15; and 4) therefore, the motion was not truly a motion to amend under Rule 15.

This action went to trial in November 1985. During voir dire, plaintiff’s counsel attempted to use five signs upon which were printed legal words or phrases and explanatory comments. The phrases were “proximate cause,” “burden of proof,” “preexisting condition” and “damages.” Plaintiff hoped to explore the jurors’ opinions, if any, on these concepts. The court disallowed the use of the signs.

The court and the parties’ counsel struggled for some time attempting to formulate proper jury instructions on two issues; i.e., (1) the aggravation of preexisting conditions and (2) the burden of proof as to the aggravation of injury and as to the divisibility of injury. Ultimately, jury found for the plaintiff, awarding him $15,100. The plaintiff moved for a new trial and that motion was granted. The court ruled that it committed two errors in instructing the jury. One error was the failure to instruct the jury that once the plaintiff had satisfactorily proved that the accident aggravated his preexisting condition, the burden of proof shifted to the defendants to show what portion of plaintiff’s damages was attributable to the accident and what portion was attributable to the preexisting condition. The second error related to instructing the jury on the aggravation of plaintiff’s preexisting mental condition. Defendants appeal the grant of a new trial.

The standard of review is clear.

“Whether to grant or deny a new trial is within the sound discretion of the trial court, (citation omitted), and will not be overturned absent a showing of manifest abuse of that discretion. (Citation omitted.)”

Walter v. Evans Products Co. (Mont. 1983), [207 Mont. 26,] 672 P.2d 613, 616, 40 St.Rep. 1844, 1847.

We first address the court’s ruling as to the burden of proof on the apportionment of damages. The court gave two general instructions on the burden of proof and apportioning damages. Instruction number 2 defined “preponderance of the evidence” and instructed that a party asserting the affirmative of an issue has the burden of proving that' issue by a preponderance of the evidence. Instruction Number 22 stated in pertinent part,

“If you find that the plaintiffs pre-existing physical condition was aggravated by the accident, then it is your duty to try to apportion the harm sustained by the plaintiff between his pre-existing conditions and the harm contributed to or aggravated by the accident, if any.
“If you find that such harm is divisible, you may award only such damages as you may attribute to the accident. But, if you find that the harm caused is not divisible then, in such event, you must award damages to compensate the plaintiff for all of the harm he has sustained.”

As stated, one of the grounds for the grant of a new trial was the failure to instruct the jury that once the plaintiff had satisfactorily proved the accident aggravated his preexisting condition, the burden of proof shifted to the defendant to prove the proper apportionment of damages. The lower court apparently reasoned that such an instruction was required by Azure v. City of Billings (1979), 182 Mont. 234, 596 P.2d 460. Azure involved two joint tortfeasors who were potentially jointly and severally liable for the entire judgment. In that situation, this Court stated:

“But where the harm caused is theoretically divisible, plaintiff’s burden is to make a prima facie showing that the harm caused was at least a contributing proximate result of the defendant’s act or omission. The burden then shifts to the defendant to either deny all liability or to prove that the harm caused can be divided and the damages therefore apportioned.”

Azure, 596 P.2d at 471. Under Azure, the burden does shift to the defendant to establish apportionment between the joint tortfeasors. However, this Court has not explicitly ruled that the burden of proof shifts to the defendant to establish apportionment of damages between a preexisting condition and subsequent injury.

In Callihan v. Burlington Northern, Inc. (1982), 201 Mont. 350, 654 P.2d 972, we were presented with a plaintiff with a preexisting condition, a defendant and the possibility of an apportionment of damages between the preexisting condition and the later accident. The defendant objected to that part of a jury instruction which advised the jury that, “But if you find that the evidence does not permit such an apportionment, then the defendant is liable for the entire .disability.” Callihan, 654 P.2d at 976. In upholding the propriety of that instruction, this Court cited the following reasoning from Azure,

. . to impose upon the plaintiff the sometimes impossible burden of proving which tortious act did which harm, would be an expression of a judicial policy that it is better that a plaintiff, injured through no fault of his own, should take nothing simply because he could not prove which tortious act caused which harm. We believe on the other hand, that where the tortious act is established, it is better that the tortfeasor should be subject to paying more than his theoretical share of the damages in a situation where the tortious conduct has contributed to the confused situation making it difficult to prove which tortious act did the harm.”

Callihan, 654 P.2d at 976, quoting Azure, 596 P.2d at 470-471. This Court held that the Azure rationale applied in Callihan, so that the single defendant would be liable for the entire disability if the evidence did not permit an apportionment between the preexisting condition and the aggravating accident.

The rationale behind the Azure rule (the burden of proof shifts to the defendant to establish apportionment after the plaintiff has met his initial burden) also applies in this situation. See 2 Minzer, Nates, Kimball, Axelrod and Goldstein, Damages In Tort Actions, Section 15.34[l][a], p. 15-111, (1986); (“The plaintiff is not charged with a burden of proof as to the actual apportionment of damages in an aggravation case. Any burden of that nature must be assumed by the defendant, since the defendant is the party standing to gain by litigating the apportionment issue.”) In an appropriate case, the instruction proposed by the District Court could be proper to clarify that the plaintiff does not have the burden of proving what portion of his disability is attributable to the defendant in a preexisting condition case.

However, as a caveat, we state that we prefer the following language over that proposed by the lower court. Once the plaintiff has satisfactorily met his burden (of proving that the accident aggravated his preexisting condition) and where the plaintiff’s evidence shows no basis for apportionment, the defendant has the burden of going forward with evidence to establish apportionment. We do not hold that such an instruction is required in this kind of case. We do hold that the lower court did not abuse its discretion in granting a new trial on the basis that such an instruction should have been given.

We also briefly address the other reason given by the lower court for granting a new trial. Although expressed somewhat inexactly, the court found that it should have instructed the jury that plaintiff could recover damages if the accident aggravated his preexisting mental condition. The court did instruct that plaintiff could recover for any aggravation of his preexisting physical condition.

Defendant argues that plaintiff disavowed the theory of aggravation of a mental condition and, therefore, was not entitled to an instruction on that point. It is true that plaintiff’s counsel gave somewhat conflicting signals on this issue. At one point, he appeared to concede that he was not pursuing the theory of aggravation of preexisting mental condition. However, at other times, specifically in his answers to interrogatories and the pre-trial order, the plaintiff did advance this claim. For example, the plaintiff unequivocally stated in his answers to interrogatories:

“The accident which forms the basis of this action also served to aggravate plaintiff’s pre-existing psychiatric condition . . . Prior to the accident, the plaintiffs mental condition had been stabilized with medication. Though the plaintiff continues to conscientiously use this and additional medication, since the time of the accident he has suffered from markedly increasing delusions of persecution, expansiveness, feelings of isolation and grandiosity, uncontrollable tremulous fits . .

Moreover, we note that the plaintiff proposed instructions which presented this theory, albeit in a vague and roundabout way. Priest’s treating psychiatrist testified that he believed the accident caused an aggravation of Priest’s mental condition. We emphasize the great deference we accord to a trial court’s admission of error and grant of a new trial. Thus, we find that the trial court did not abuse its discretion in granting a new trial on this point.

The second issue is whether the lower court erred in denying the Priests’ motion to file an amended complaint. We note that appellant questions, rather disingenuously, whether this issue is properly before this Court.

The Priests submitted a separate brief arguing the issue of the amended complaint. Taylors correctly point out that that brief was submitted under Linda Priest’s name. They argue that because Linda was not a party below, she cannot file a separate appellant’s brief and the issue debated in that brief is not on appeal. We disagree. The motion to amend the complaint was made by both Maurice and Linda Priest. Moreover, both of their names appear on the notice of appeal from the denial of their motion to amend. For the Taylors benefit, we repeat what we stated in our December 1986 order, “Maurice Dean Priest is . . . entitled to have considered the propriety of the order denying his motion to file an amended complaint . . .”

In denying the motion to amend, the District Court apparently reasoned that a Rule 15 motion to amend cannot be used to add a new plaintiff asserting a new claim. Rules 15(a) and (c), M.R.Civ.P., provide in relevant part;

“(a) A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires
“(c) Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him . .

In the instant case, there was a responsive pleading prior to the motion to amend the complaint. Therefore, plaintiffs needed leave of court to amend the pleadings. We have construed Rule 15 broadly and “it is the rule to allow amendments and the exception to deny them.” Union Interchange, Inc. v. Parker (1960), 138 Mont. 348, 354, 357 P.2d 339, 342. In White v. Lobdell (Mont. 1984), [208 Mont. 295,] 678 P.2d 637, 641-642, 41 St.Rep. 346, 351-352, this Court quoted with approval the United States Supreme Court’s analysis of Federal Rule 15 in Foman v. Davis (1962), 371 U.S. 178, 181-182, 83 S.Ct. 227, 229-230, 9 L.Ed.2d 222, 226;

“Rule 15(a) declares that leave to amend ‘shall be freely given when justice'so requires’; this mandate is to be heeded .... If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason . . . the leave sought should, as the rules require, be ‘freely given.’ Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” (Emphasis ádded.)

We hold that the District Court abused its discretion in rejecting the motion to amend. The court found, incorrectly, that Rule 15 could not be used to add a new plaintiff asserting a new cause of action. Numerous federal cases have established that a motion to amend may add, or substitute, a new plaintiff. Further, the new plaintiff’s claim can relate back under Rule 15(c), if the Rule 15(c) requirements are met, so that an otherwise time-barred claim can be litigated. See, e.g., Staggers v. Otto Gerdau Company (2nd Cir. 1966), 359 F.2d 292; Yorden v. Flaste (D.C. Del. 1974), 374 F.Supp. 516; Garr v. Clayville (D.C. Del. 1976), 71 F.R.D. 553; Leachman v. Beech Aircraft Corp. (Ct.App. D.C. 1982), 694 F.2d 1301; Stoppelman v. Owens (D.C. D.C. 1983), 580 F.Supp. 944. Certain of the federal cases (Yorden, Garr and Stoppelman among them) rely heavily upon the Advisory Committee Note of 1966 to Rule 15(c), which states in part,

“The relation back of amendments changing plaintiffs is not expressly treated in revised Rule 15(c) since the problem is generally easier. Again the chief consideration of policy is that of the statute of limitations, and the attitude taken in revised Rule 15(c) toward change of defendants extends by analogy to amendments changing plaintiffs.”

Given the implications of the Advisory Committee Note and the liberality with which leaves to amend are to be granted, we hold that a motion to amend can properly add a plaintiff and a new cause of action. We further hold that the District Court erred in this case in refusing to allow Priests to amend their complaint.

Taylors argue that the loss of consortium claim is subject to a two year statute of limitations and that it is, therefore, time barred. We disagree. This Court has apparently never established the statute of limitations for such a claim. We now hold that a loss of consortium claim is subject to the three year statute of limitations provided in Section 27-2-204, MCA, for tort actions. This Court recently agreed that

“[a] cause of action for consortium of the deprived spouse is separate and distinct from the claim of the injured spouse and that the basis for a consortium claim lies in the Montana statutes in which the husband and wife contract for obligations of mutual respect, fidelity, and support. Section 40-2-101, MCA.”

Bain v. Gleason (Mont. 1986), [223 Mont. 442,] 726 P.2d 1153, 1155, 43 St.Rep. 1897, 1899. Although an independent and distinct cause of action, a loss of consortium claim is also completely derivative from the other spouse’s claim. Johnson v. United States (D.C. Mont. 1980), 496 F.Supp. 597. The defendant’s conduct which gives rise to the husband’s claim is the conduct which gives rise to the wife’s claim. Maurice Priest’s negligence claim is subject to the three year statute of limitations and it would be illogical and inequitable to subject the loss of consortium claim to a different time limit when both claims arise out of the same conduct. Given a three year statute of limitations, the loss of consortium claim was timely filed on August 28, 1985.

Even if that claim had been filed past the filing deadline, we hold that under Rule 15(c), M.R.Civ.P., and Tynes v. Bankers Life Co. (Mont. 1986), [224 Mont. 350,] 730 P.2d 1115, 43 St.Rep. 2243, the loss of consortium claim would relate back to the time of the original complaint. We have already set forth above the “relation back” rule of Rule 15(c). In Tynes, Bankers Life issued a group health insurance plan for the employees of a plumbing shop owned by the Tynes family. Walter Tynes was an employee, the owner of the shop and the father of Kelley Tynes, a son who worked at the shop sporadically. In 1977, Kelley began experiencing severe mental problems. The Tynes family sought to secure coverage for Kelley’s medical expenses through the group health insurance plan. After some confusion, Bankers Life denied coverage in September 1979 on the basis that Kelley was not an eligible employee. In December 1981, Kelley filed a complaint against Bankers Life alleging breach of contract. In May 1984, an amended complaint was filed adding Walter as a plaintiff and stating three claims, i.e., breach of contract, tortious breach of the implied covenant of good faith and fair dealing and tortious violation of Montana’s insurance code. Kelley also amended his own complaint at that time to allege breach of the implied covenant of good faith and fair dealing and tortious violation of the insurance code. Bankers Life claimed the new claims were barred by statutes of limitation. This Court held that the trial court did not err in allowing Walter’s claims to relate back to the time of Kelley’s original complaint, thus evading the bar of the statutes of limitation. This Court found that Bankers Life would not be prejudiced, stating,

“The claims of the two parties are nearly identical. They arise from the exact same ‘conduct, transaction, or occurrence set forth ... in the original pleading’ as required by Rule 15(c), M.R.Civ.P. The pleadings contain the same causes of action. Finally, there is a ‘clear identity of interest’ between Kelley and Walter. Walter was the original insured. He agreed, as Kelley’s father, to be responsible for Kelley’s medical bills incurred at Wilson Center. The only difference in the two pleadings is damages.”

Tynes, 730 P.2d at 1120-1121. Much the same can be said in the instant case. Linda’s claim arises from the same occurrence set forth in her husband’s original complaint, as required by Rule 15(c), M.R.Civ.P. There is a clear identity of interest between Linda and Maurice. The only additional element which Linda’s claim entails is damages. Liability for the loss of consortium claim would be predicated upon liability for the original negligence claim. Taylors do not demonstrate, and we do not find, how they could be prejudiced by allowing the loss of consortium claim to relate back.

Ample case law supports our decision today. In the oft-cited case of Williams v. United States (5th Cir. 1968), 405 F.2d 234, the minor plaintiffs mother asserted the minor’s claim, as his best friend, against the United States. The mother later sought leave to amend the complaint to add herself as a plaintiff and assert her own claim for loss of her child’s services. The federal district court refused to allow her claim because of the statute of limitations bar. The Fifth Circuit Court of Appeals reversed and held that the amendment would be allowed, notwithstanding the statute of limitations. The court reasoned that the government had prior notice of the mother’s claim because (1) under local law, liability to the minor would give rise to liability to the parent, and (2) the circumstances would reasonably indicate a likelihood the parent would incur losses of a recoverable kind. Emphasizing the identity of interest between the mother and child, the court found that allowing the amendment would not prejudice the government. Although Williams advances a somewhat stricter standard than our Tynes case, the factual situation is similar.

An even more analogous case is Hockett v. American Airlines, Inc. (D.C. Ill. 1973), 357 F.Supp. 1343. In Hockett, the wife filed an amended complaint adding herself as a new plaintiff asserting a claim for loss of consortium. Her husband had filed the original complaint. The court found that the wife’s claim was asserted within the statute of limitations. The court added, however, that even if the wife had asserted her claim after the statutory period, it would relate back under Rule 15(c) to the original complaint. The court emphasized that the loss of consortium claim was based upon the same allegations of negligence as the husband’s claim. The court added that,

“[t]he defendants cannot claim prejudice in this case since they have been fully advised of the facts upon which [the husband] has based his claim and have been vigorously preparing their defenses.” Hockett, 357 F.Supp. at 1348. The same holds true in the instant case.

Lastly, in Hoch v. Venture Enterprises, Inc. (D.C.V.1.1979), 473 F.Supp. 541, the plaintiff’s wife sought leave to amend her husband’s complaint to assert a claim for loss of consortium. She sought leave to amend after the statute of limitations had run on her claim. The federal court allowed her claim to relate back to the original complaint, reasoning that the defendant would not suffer prejudice. The court found that the wife’s claim was based on the same allegations of negligence as her husband’s and, therefore, the defendant had received the notice that the statute of limitations was intended to afford.

These cases emphasize, and we agree, that amendments involving new plaintiffs will relate back only in very limited circumstances. Those circumstances are marked by a close identity of interest between the original plaintiff and the new plaintiff. Moreover, in this case, the claim is based on the same allegations of negligence as the original claim. We hold that Linda’s claim would relate back to the original complaint if her claim had been filed after the limitation period.

The third issue is whether the lower court properly prohibited the use of the printed signs during voir dire.

“Absent an abuse of discretion, . . . the trial court has great latitude in controlling voir dire. (Citation omitted.)”

State v. LaMere (Mont. 1980), [190 Mont. 332,] 621 P.2d 462, 466, 37 St.Rep. 1936, 1941. Here, although the lower court prohibited the use of the signs, it stated that plaintiff’s counsel could explain the concepts involved and ask the jurors if they had problems with those concepts. Thus, counsel could explore the jurors’ perceptions. We hold that the court’s refusal to allow the use of the signs was a reasonable limit on voir dire and not an abuse of discretion.

Affirmed in part, reversed in part and remanded for new trial.

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


text:
    In re the MARRIAGE OF MAYBELLE H. WATSON, Petitioner and Respondent, and JOHN W. WATSON, Respondent and Appellant.
    No. 86-249.
    Submitted on Briefs April 30, 1987.
    Decided July 13, 1987.
    Rehearing Denied Aug. 18, 1987.
    739 P.2d 951.

      Bottomly & Gabriel, Robert W. Gabriel, and Strause & Anderson, Lawrence A. Anderson, Great Falls, for respondent and appellant.
    Regnier, Lewis & Boland, Thomas Boland, Great Falls, for petitioner and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The husband, John Watson, appeals the marital property distribution as ordered by the Cascade County District Court. The issues on appeal are:

1) Whether the District Court abused its discretion in dividing the marital property?

2) Whether the District Court erred in offsetting the $28,000 maintenance award from the property awarded to the husband?

We affirm.

The wife, Maybelle Watson, married her first husband, Walter Evers, in 1930 and had two children by him, Judy Evers Kurth and Jon Evers. The Evers lived on a ranch in Chouteau County, Montana. Mr. Evers died in 1948 and left his entire estate to his wife. After Mr. Evers’ death, the wife ran the ranch with the help of two hired men. In 1948, representatives from the Hutterite colony offered the wife, according to her son and son-in-law, approximately $500,000 for the ranch. The wife declined the offer, explaining that she ran a family ranch which was not for sale to outsiders. At present, the family ranch is now in its fifth generation.

In 1950, the wife married the husband in this action, John “Jock” Watson, a bartender at the Vet’s Club in Fort Benton, Montana. The husband had some ranching experience, helping his mother raise dairy cows. In 1949, one year before the marriage, the husband declared a net farm loss of $11.50 on his tax return. He brought approximately five head of cattle to the ranch at the time of the marriage. When the parties were married, the ranch debt totaled $65,000. That debt was assumed in 1959 by the wife’s daughter and son-in-law, Judy and Dick Kurth, when the couple was deeded 2,925 acres of the ranch. From 1959 forward, the ranch has been operated debt-free.

In the first few years of the marriage, the husband, among other things, assisted in the building of a tin roof on a shed and performed occasional concrete work. The ranch was largely fenced by contract labor and the ground which was broken into farmland was similarly accomplished through the efforts of hired laborers and the wife’s son-in-law. The wife claims that she was expanding ranch operations before she married the appellant. With the exception of a strip of abandoned railroad right-of-way, no additional real property was purchased for ranching purposes. However, the parties did purchase real property in Idaho, Arizona, Chouteau County, Montana, and Glacier County, Montana. Beginning in 1967, the parties spent the winters in Arizona. From 1968 to 1972, the wife’s son-in-law, Dick Kurth, and other full-time hired men managed the affairs of the ranch. Kurth operates a ranch of his own in Chouteau County. Kurth testified that the husband repeatedly requested help, so much so that Kurth oftentimes could not get his own work done. From 1972 to 1977, the wife’s son, Jon Evers, and his wife managed the ranch while the parties wintered in Arizona. Over this period of time, Evers significantly increased his management role at the ranch. From 1977 to the present, Evers and his wife have operated the ranch pursuant to three separately written contracts — a contract for the sale of livestock, equipment, and machinery, a farm rental agreement, and a contract for deed to a portion of the ranch property. The son and his wife made several equipment purchases and undertook many improvements which have contributed to the value of the ranch.

In valuing the ranch property which is at the heart of the dispute, the District Court considered the opinions of both parties’ appraisers, and those of Evers and Kurth. The court noted that Kurth has been in the cattle business for 35 years and has been commended and recognized by several livestock groups as well as the governor of Montana for his experience and background in ranching. The court accepted the opinion of the wife’s appraiser as to the per acre value of the cropland, grazing land, and the value of building improvements. The court made its own determination as to the per acre value of the mountain place grazing land located on the ranch after considering the opinions of the husband’s appraiser, Kurth, and Evers, and further noted that neither party’s appraiser considered the detrimental effect of alkali on the value of the ranch. The judge concluded that the ranch’s value at the time of marriage was $500,000 and $767,400 at the time of hearing.

In the property division, the husband was awarded property worth $520,000. The wife received the balance of the marital estate, or property worth approximately $952,000. We set out the pertinent part of the award:

“112. After full consideration of each of the above findings including the value of Maybelle Watson’s ranch prior to her marriage, the appreciated value of that ranch during the marriage and the contributions made by Jock Watson individually to the appreciated value of the ranch, the Court finds that Jock Watson is entitled to the following:
“a. The parties’ property in the state of Idaho.
“b. The parties’ property in the state of Arizona.
“c. The parties’ property in Fort Benton, Montana.
“d. The parties’ 1979 Dodge pickup truck.
“e. The parties’ 1984 Chevrolet automobile.
“f. The following life insurance policies which have an accumulated face value of $40,000:
“1. New York Life policy No. 21866466 with a face amount of $10,000.
“2. Prudential policy No. 33008325 with a face amount of $20,000.
“3. Both National Service Life policies with a combined face value of $10,000.
“g. Cash in the amount of $200,000.
“h. The Donald Scott receivable in the principal amount of $12,000.
“i. One-half of the barley check currently in the possession of Maybelle Watson which said barley check is in the amount of $3,796, half of which is $1,898.
“j. One-half of the parties’ 1984 nét winter wheat crop proceeds after the parties’ spraying and fertilizer expenses have been deducted pursuant to the lease agreement with Jon and Teri Evers.
“113. The Court finds that the approximate present value of its award to Jock Watson is $520,000.
“114. The Court finds that the balance of the marital estate not described in finding of fact No. 112 hereinabove should be awarded to Maybelle Watson.

In July 1986, the husband filed a motion for temporary living expenses. He requested an award of $28,000, not to be offset against his marital property award. In his motion, the husband acknowledged a present balance of $27,597.16 in his two bank accounts. The court granted the motion but offset the $28,000 award against the marital property award to the husband.

The first issue is whether the District Court abused its discretion in dividing the marital property. The standard of review is found at Section 40-4-202, MCA. That statute gives the court the authority to equitably apportion marital property in a dissolution proceeding. A district court has far-reaching discretion in resolving property divisions and its judgment will not pe altered unless a clear abuse of discretion is shown. Buxbaum v. Buxbaum (Mont. 1984), [214 Mont. 1,] 692 P.2d 411, 414, 41 St.Rep. 2243, 2246. Findings of fact will not be set aside unless they are clearly erroneous. First Nat. Mont. Bank of Missoula v. McGuiness (Mont. 1985), [217 Mont. 409,] 705 P.2d 579, 42 St.Rep. 1288.

The husband first argues that the lower court abused its discretion by adopting verbatim the wife’s proposed findings of fact without sufficient evidentiary grounds to do so. We cite two cases as authority on this point.

“[t]he danger in verbatim adoption of proposed findings from one party is that the court does not show itself to be exercising independent judgment. . . Nonetheless we have said that our ultimate test for the adequacy of findings of fact is whether they are sufficiently comprehensive and pertinent to the issues to provide a basis for decision and whether they are supported by the evidence presented.” First Nat. Mont. Bank of Missoula v. McGuiness (Mont. 1985), 705 P.2d 579, 584, 42 St.Rep. 1288, 1294. The record should reflect conscientious concern and participation by the district court. Goodmundson v. Goodmundson (1982), 201 Mont. 535, 538, 655 P.2d 509, 511. We note that the lower court went to impressive lengths in detailing the long factual background of this case. While we continue to believe that a trial court must file its own findings and conclusions, the court should have guidance from the parties’ attorneys. See Tomaskie v. Tomaskie (Mont. 1981), 625 P.2d 536, 38 St.Rep. 416. We of course realize that attorneys will attempt to portray the interests of their clients in a most favorable light. It is therefore incumbent upon the judge in a bench trial to gather the facts as seen from each side and discern the most accurate or probable set of circumstances. We note that the court made significant changes to the wife’s proposed findings, including an increase in the cash award to the husband from $150,000 to $200,000. We conclude that the findings and conclusions are sufficiently comprehensive, pertinent to the issues, and supported by the evidence presented.

The husband next argues that the lower court failed to correctly value his interest in the ranch. We note that neither party personally testified at trial as to the ranch’s value and therefore the court was forced to rely on the opinions of experts and laymen. The trier of fact has the discretion to give whatever weight he sees fit to the testimony of an expert. In re Marriage of McCormack (Mont.1986), [223 Mont. 409,] 726 P.2d 319, 43 St.Rep. 1833. However, that same trier of fact is free in its discretion to adopt the recommendation of a party or a layman over that of an expert. Goodmundson, 655 P.2d at 511. In valuing the ranch, the court relied on the expert appraisers and the opinions of Mr. Kurth and Mr. Evers, both longtime ranchers of this property. The court made its own determination as to the per acre value of the mountain place grazing land and the effect of alkali on the ranch’s property value. In addition, there are several instances where the court settled on a property value figure somewhere between the parties’ proposals. We find substantial evidence to support the valuation findings of the trial court.

We believe it necessary to mention the fact that the source of marital property is a major factor to be considered by the District Court under Section 40-4-202, MCA. See In re Marriage of Summerfelt (Mont. 1984), [212 Mont. 332,] 688 P.2d 8, 41 St.Rep. 1775. In Summerfelt, we reversed the property distribution because the wife brought substantially more net worth into the marriage than did the husband. ($425,000 from the wife, $12,000 from the husband). Here, as in Summer felt, the wife brought substantially more net worth into the marriage than the husband. When the parties married, the wife was in charge of an expanding ranching operation, while the husband was bartending in Fort Benton, and the owner of five head of cattle. In light of these facts a property distribution of $520,000 for the husband and $952,000 for the wife cannot be considered inequitable. We therefore defer to the decision of the trial court.

The second issue is whether the District Court erred in offsetting the $28,000 post-trial award from the husband’s property settlement. Maintenance is allowed when two conditions exist: (1) the party seeking maintenance lacks sufficient property to provide for his reasonable needs; and (2) the party is unable to support himself through appropriate employment. In re Marriage of Korpela (Mont. 1985), [219 Mont. 150,] 710 P.2d 1359, 42 St.Rep. 1912.

Here the District Court awarded the husband $28,000 in a post-trial motion, despite the fact that the husband had over $27,000 in his bank accounts. We quote the language in the order:

“2. The money so transferred by Maybelle Watson Evers to Jock Watson pursuant to the Order of this Court herein shall be construed as being transferred in accordance with this Court’s findings, conclusions and decree dated February 11, 1986, so that it is understood between the parties and their counsel that the money transferred by Maybelle to Jock pursuant to the Order of this Court herein is inclusive in and not in addition to those monies awarded to Jock Watson by this Court in its Decree of Dissolution dated February 11, 1986.”

We agree that an offset was in order. The parties had been ordered to pay their own attorney fees and costs and the post-trial motion by the husband was primarily based upon the need to pay attorney fees and transcript costs. The maintenance award was not to alter or contradict the previous marital property award, and the court was correct in so stating.

Affirmed.

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


author: MR. JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JACK AMAYA, JR., Defendant and Appellant.
    No. 86-482.
    Submitted on Briefs May 14, 1987.
    Decided July 13, 1987.
    739 P.2d 955.

      J. Dirk Beccari, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Patricia J. Schaeffer, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Co. Atty., Ed McLean, Deputy Co. Atty., Missoula, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Defendant appeals his conviction of felonious theft entered in the Fourth Judicial District in and for Missoula County. We affirm.

Defendant, Jack Amaya, was convicted of the theft of a late-model truck stolen in December 1984 from a Houston, Texas suburb. In June 1985, authorities found the truck impaled on a guardrail on Highway 93 outside of Missoula, Montana. After checking the vehicle identification number and receiving information that this truck was stolen, the authorities removed the truck and secured it for evidentiary processing. A passerby who was an acquaintance of the defendant told police that he (passerby) had passed by the accident scene and had seen the defendant and a companion attempt to extricate the truck from the guardrail. When the passerby offered to help by calling the police, the defendant’s companion declined, stating, “They’re onto us.”

From a photograph, the owner in Texas identified the truck as his missing vehicle. Fingerprints taken from the interior of the vehicle were identified as defendant’s. The bumper, which had been imprinted with the dealer’s name, had been burned with a blow torch. A lock-ring from the ignition was missing and the drive shaft was lying in the truckbed.

Defendant was eventually arrested and charged with the offense of felony theft. An omnibus hearing was held, and an omnibus order was entered in which the State noted that it had “disclosed all evidence favorable to defendant on the issue of defendant’s guilt.” Defendant was originally scheduled to stand trial on April 7, 1986, but failed to appear. Trial was finally held on May 12, and the defendant was found guilty by jury verdict. The District Court sentenced defendant to ten years imprisonment, three years suspended. Defendant now appeals.

I

On appeal, defendant raises two related arguments. First, he argues the District Court erred in its refusal to dismiss the charge based on the fact that the stolen vehicle was unavailable at the time of trial. During the State’s case in chief, defendant moved for a jury view of the stolen vehicle. However, the truck had been returned to the owners’ insurance company, which had moved the truck out of state and had resold it. Defendant moved for dismissal of the theft charge, contending that a view of the truck was essential to his defense. The District Court denied the motion.

A

Defendant first argues that the State’s “suppression” of this physical evidence violated Sections 46-5-301, -303, MCA. These statutes outline the procedural requirements for disposition of evidence seized pursuant to a search, with or without a warrant.

These statutes are inapplicable. This is not a search situation, warrantless or otherwise. The authorities found a vehicle, abandoned on a major highway and reported to be stolen. The authorities had an obligation to remove the vehicle and search for evidence. Defendant cannot persuasively maintain any legitimate expectation of privacy in a vehicle left under these circumstances. Where no reasonable or legitimate expectation of privacy exists, there is neither a search nor a seizure within the contemplation of the Fourth Amendment of the United States Constitution or Article II, Section 11 of the Montana Constitution. State v. Bennett (Mont. 1983), [205 Mont. 117,] 666 P.2d 747, 749, 40 St.Rep. 1133, 1136. In this case, the warrantless search statutes cited by defendant are simply inappropriate.

Moreover, even were we to treat this as a warrantless search situation, the defendant, as discussed below, has failed to make the requisite showing of prejudice to his substantial rights by the State’s alleged failure to comply with these procedural requirements. See State v. Lenon (1977), 174 Mont. 264, 277, 570 P.2d 901, 909 (discussing the requirements contained within the predecessor of Section 46-5-301, MCA). We find no error.

B

Defendant further argues the State’s disposition of the subject vehicle constituted suppression of evidence. He contends that under Section 46-15-322, MCA, and that under Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and its Montana progeny, the State’s inability to produce the vehicle in effect represented a suppression of evidence favorable to the defense and thereby violated defendant’s right to due process.

This Court previously addressed this legal argument in State v. Craig (1976), 169 Mont. 150, 545 P.2d 649. Therein, we required that the evidence in question be of some import, stating:

“[t]o obtain a new trial, the accused must show more than suppression; he must show the evidence was material and of some substantial use to him.”

Craig, 545 P.2d at 651.

More specifically, we adopted as a test that, “[negligent suppression requires a reversal of a conviction where the result would have been different had the evidence been disclosed.” Craig, 545 P.2d at 651.

The State now suggests that we adopt the tests subsequently articulated by the United States Supreme Court in United States v. Agurs (1976), 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342. In Agurs, the Supreme Court adopted a three-tiered standard of materiality for allegedly suppressed evidence. That standard which would presumably fit this situation renders omitted evidence material if it “creates a reasonable doubt [of guilt] that did not otherwise exist.” Agurs, 427 U.S. at 112, 96 S.Ct. at 2402, 49 L.Ed.2d at 355.

We recognize the difficulty of engaging in a post-trial review to determine the cumulative effect of any specific, isolated item of evidence. However, in this case, under any definition of materiality we can find no error. We therefore find it unnecessary to address the Agurs standards.

The defendant has failed to demonstrate how this “suppression” was in any way material. The State provided the defendant, and later introduced into evidence without objection, a series of photographs depicting the vehicle, the steering column, the ignition switch, and the driver’s door. We agree that in the absence of specific and concrete reasons for preservation of the vehicle itself, use of photographs and other evidence of a vehicle can satisfy the prosecution’s obligation. State v. Philbrick (Me. 1984), 481 A.2d 488, 493; Wilson v. State (Ind. 1982), 432 N.E.2d 30, 32-33. Additionally, ample testimony was presented concerning the condition of the vehicle. Defendant has been unable to explain why a jury view of the vehicle itself was necessary to his defense and why the photographs and general testimony were unsuitable substitutes. We will not assume that the vehicle contained exculpatory evidence when there exists no such indication in the record. We hold that the disposition by the authorities of the subject vehicle did not violate defendant’s due process rights.

II

Finally defendant argues that the State violated his due process rights by failing to disclose evidence of other current vehicle theft investigations. At trial, a Missoula police officer divulged that an investigation was pending of two other vehicles stolen from Texas. Subsequently, the authorities arrested a suspect who pled guilty to the offense of theft. Upon defense inquiry, the deputy county attorney disclosed that the investigative file had not been revealed to the defense due to the pending criminal investigation and due to the fact that nothing exculpatory to the defendant was contained therein. The District Court conducted an in camera inspection of the investigative reports and, finding nothing exculpatory to the defendant, refused defendant’s motion for full disclosure. Later during trial, transcripts of investigative depositions were made available to defense counsel.

We find no error. Given defendant’s apparent theory of defense, it is difficult to imagine what possible effect this information could have had on defendant’s behalf. The prosecution’s obligation to disclose information is by necessity limited to information that has a direct bearing on the case in question. The District Court fashioned an appropriate remedy by conducting an in camera inspection to determine whether any of this information was exculpatory. The court concluded that none of the information was exculpatory and the defendant has failed to show otherwise. His speculative arguments on the possible effects of immediate disclosure of this information are unpersuasive.

The conviction entered below is affirmed.

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

      . Defendant specifically relies upon Section 46-15-322(l)(e), MCA, which provides:
      “(1) Upon arraignment in district court or at such later time as the court may for good cause permit, the prosecutor shall make available to the defendant for examination and reproduction the following material and information within his possession or control:
      “(e) all material or information that tends to mitigate or negate the accused’s guilt as to the offense charged or that would tend to reduce his punishment therefor.”


text:
    In re the CUSTODY OF N.T.E., a minor child. B.T.E., Petitioner and Respondent, v. P.S.K., Respondent and Appellant.
    No. 86-503.
    Submitted on Briefs June 4, 1987.
    Decided July 13, 1987.
    739 P.2d 485.

      Karl H. Boehm, Missoula, for respondent and appellant.
    Sol & Wolfe, Michael Sol, Missoula, for petitioner and respondent.
    Douglas R. Austin, Missoula, Guardian Ad Litem.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Fourth Judicial District, in and for Mineral County, Montana, involving the custody of the parties’ minor child. The District Court awarded custody of the child (N.T.E.) to the father and allowed the mother certain visitation rights. Following the court’s order, the mother obtained new counsel and brought a motion for new trial and to alter or amend the findings of fact, conclusions of law and order. Upon hearing the motion, the District Court denied the mother’s motion for a new trial and held that the amended findings did not necessitate amending the conclusions of law or the custody order. The mother appeals the amended findings of fact, the original findings of fact not amended, the conclusions of law and custody order. We affirm.

After the birth of N.T.E., the mother became his primary caretaker because the parents did not live together. An informal visitation arrangement to enable the father to maintain his relationship with his child was agreed upon. This proved frustrating and difficult, however, and at one point the father refused to return N.T.E. to the mother. The father petitioned the District Court for temporary custody. The court through stipulation of the parties set up a schedule whereby N.T.E. would spend five nights with the father and ten nights with the mother. However, this arrangement did not work.

During the hearing on this matter, the court heard testimony regarding alcohol and drug abuse by both parents. Extensive testimony also was taken regarding abuse and neglect the mother had suffered during her childhood. The parties stipulated that home studies of each home be conducted by the office of Social and Rehabilitation Services. A report to the court was to be made upon completion. Subsequently the court ordered psychological evaluations of both parties and a chemical abuse evaluation of the mother. Dr. Shan Guisinger, the psychologist who made the psychological evaluations, recommended that the father be designated the custodial parent and N.T.E. have liberal visitation with the mother.

The mother was not satisfied with this evaluation and was thereafter evaluated by another psychologist, Dr. Michael Scolatti. He reviewed the findings and reports of Dr. Guisinger and conducted more extensive tests regarding her personality and her use of alcohol. Dr. Scolatti ultimately disagreed with the recommendations of Dr. Guisinger in her conclusion that the father would make the better parent. The court rejected many portions of Dr. Scolatti’s report and testimony which was in conflict with that of Dr. Guisinger.

The matter came to trial on May 7, 1986, and continued from time to time until June 13, 1986. Extensive evidence was presented by both parties. The District Judge ultimately decided that the father was to be the primary custodian and the mother would have visitation rights.

We will consider the following issues:

(1) Whether the order granting custody of N.T.E. to the father, under the circumstances where the child will not be residing in the father’s home but in the home of the child’s paternal grandparents who will be the primary caretakers, is contrary to Montana law;

(2) whether the findings of fact and conclusions of law are supported by substantial credible evidence.

This Court has long held that awarding custody is a matter for the District Court’s discretion. Bailey v. Bailey (1979), 184 Mont. 418, 603 P.2d 259. The award of custody must be based on the best interest of the child to determine custody rights between natural parents. Henderson v. Henderson (1977), 174 Mont. 1, 9, 568 P.2d 177, 181-182. The court must take into consideration the criteria set forth in Section 40-4-212, MCA.

The mother argues this standard is not appropriate in this case citing In the Matter of Guardianship of Aschenbrenner (1979), 182 Mont. 540, 597 P.2d 1156. She contends custody is in fact being awarded to N.T.E.’s grandparents. If, indeed, custody had been awarded to the grandparents, the best interest of the child standard would not be appropriate. The father, however, was awarded custody, and not the grandparents.

It is true N.T.E.’s grandmother cares for him during the five-day period when the father is at work. Her lengthy testimony included the fact she has raised four children of her own, that even though she serves as N.T.E.’s primary babysitter, his father is the primary caretaker when he is at home, and that he shoulders all of the responsibilities for the child’s care. When possible, he bathes the child, feeds him, gives him his medicine, checks his temperature, and generally cares for N.T.E.

The court specifically concluded “that awarding custody to [the father] does not, in effect, award custody to the paternal grandparents.” In fact if the father has not incorporated N.T.E. into his own household a majority of the time within one year, the mother may schedule a show cause hearing to determine if the father is still the primary custodian. Furthermore, the mother was granted reasonable visitation privileges, including having N.T.E. in her household every other weekend. The court reserved the right to increase the mother’s visitation privileges after N.T.E. reaches age four, if a show cause hearing at that time determines it is in his best interest to do so.

The mother contends that because the District Court did not consider N.T.E.’s Native American heritage when awarding custody, his best interest was not adequately addressed. The mother did not, however, present any evidence to the District Court regarding N.T.E.’s Native American heritage. She asserts that she believes it is clear the father holds some very prejudicial opinions of Native Americans. There is no evidence in the record to support her charges. Her claim that the District Court “failed to protect the child’s fundamental civil rights” by some undefined failure regarding N.T.E.’s heritage as a Native American is not supported by the evidence. The father indicated at trial he would help N.T.E. identify with his Native American heritage as best he could. We find the best interest of the child standard was applied even though the court did not consider N.T.E.’s Native American heritage before awarding custody to the father.

We find here that the District Court carefully weighed all factors and set forth those factors clearly in its order as required by Montana law. See Marriage of Barron (1978), 177 Mont. 161, 580 P.2d 936.

The second issue is whether the findings of fact, conclusions of law and order are supported by substantial credible evidence.

There is considerable evidence that N.T.E.’s health and emotional well-being suffered during the custody proceedings. Dr. Steven R. Smith, N.T.E’s treating physician, noted that the child had upper respiratory infections, ear infections, asthmatic-like symptoms and eczema which very likely were related to the stress of being shuffled back and forth between his parents. Dr. Smith’s letter to Judge Green of Missoula, hereinafter quoted, is a thoughtful plea to the District Court to resolve the custody dispute as quickly as possible. Dr. Smith found that the constant transportation of N.T.E. from one home to another was extremely detrimental to the child.

Quoting Dr. Smith’s letter to Judge Green:

“I am writing regarding the case of [N.T.E.] an IIV2 month old Caucasian male infant over whom a custody suit is currently being conducted by his parents.
“At the current time this child’s custody is being changed every few days of the week between the mother, father, and grandparents involved.
“I am writing to tell you that this form of custody needs to end. I have seen this child only on a few occasions but am now becoming his primary physician in the Superior area as Dr. Vern Gottleaber has left this area.
“In reviewing [N.T.E.’s] records I find that this child has been evaluated so many times it is unbelievable, by doctors both here and elsewhere including evaluations for failure to thrive. Additionally the child has been afflicted with a number of infections including upper respiratory infections, ear infections, asthmatic like symptoms, allergies and eczema.
“Enough is enough. I suggest to you that the allergy this baby has is an allergy to being treated like a human basketball. [N.T.E.] is being thrown on a weekly basis from one home situation to another having very little time to establish any kind of bonding situation with either family. He is involved in some kind of a damn circus over which he has absolutely no control. He is just simply an object for possession. It is my firm and professional opinion that the child is not going to thrive in a situation where he has no constant stable home life. He may survive and then again he may not, but he is not going to thrive. In addition to that, if you are going to evaluate a child for thriving in any given situation, one week is not a long enough period of time to do that. It needs to be done over a period of probably several months.
“Please, I implore you for the ache that comes inside of me every time I see this child, to please make a decision for custody that will allow this child a home. It doesn’t really matter which home he goes to live at, as either has to be better than what he is going through right now.”

We have a lengthy record covering the testimony of many witnesses and the trial court set forth detailed and well supported findings of fact. We find that those findings of fact were made in consideration of the factors set forth by Section 40-4-212, MCA, and by our holding in Cameron v. Cameron (1982), 197 Mont. 226, 641 P.2d 1057. We have previously held that the District Court need not make specific findings regarding every element set forth in Section 40-4-212, MCA, but only findings necessary to support the conclusions arrived at by the court. See Burleigh v. Burleigh (1982), 200 Mont. 1, 6, 650 P.2d 753, 756.

This Court has held that the district court’s decision in such matters will not be disturbed “absent a clear preponderance of the evidence against the court’s decision.” Gilmore v. Boehm (Gilmore) (1978), 166 Mont. 47, 50, 530 P.2d 4B0, 482; Rule 52(a), M.R.Civ.P. Here, the District Court was provided with sufficient evidence of the mother’s troubled past and present life, and has made a decision that the child’s best interest would be served by making the father N.T.E.’s primary custodian.

The decision of the District Court is affirmed.

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


text:
    JAMES C. NORDLUND, Plaintiff and Appellant, v. SCHOOL DISTRICT NO. 14, and High School District No. A., Phillips County, Montana, Defendants and Respondents.
    No. 86-565.
    Submitted on Briefs April 23, 1987.
    Decided July 13, 1987.
    738 P.2d 1299.

      Morrison, Hauge, Ober, Young & Melcher, Robert D. Morrison, Havre, for plaintiff and appellant.
    James, Gray & McCafferty, Robert F. James, Great Falls, for defendants and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

James Nordlund appeals the dismissal of his suit in Phillips County District Court for failure to state a claim upon which relief can be granted. The issues on appeal are:

(1) whether the District Court erred in interpreting Nordlund’s employment contract as an express contract for a term of one year;

(2) whether the District Court erred in concluding that Nordlund could prove no set of facts from which the obligation of good faith and fair dealing could be implied as a term of his employment contract;

(3) whether the District Court erred in dismissing the remaining counts of the complaint. We affirm.

In 1956, Nordlund was hired by the Malta, Montana, School District to teach at the high school. In 1966, Nordlund became the district superintendent and continued in that capacity until the end of the 1984 school year. As superintendent, Nordlund did not have tenure and therefore his employment status was governed by a written contract with the school board. From 1966 to 1983, Nordlund worked under a series of two-year contracts. In January 1983, after the board voted 3-2 to retain Nordlund’s services, Nordlund was offered and subsequently accepted a one-year written contract for the 1983-84 school term, beginning on July 1, 1983. The applicable provision states:

“(1) That the superintendent is hereby employed to act as superintendent in accordance with school year beginning on or about the 1st day of July, 1983, for a period of no less than one year.”

The contract itself does not contain an option for renewal clause or refer to the possibility of renewal in any sense. The close vote by the school board on retaining Nordlund was attributed to a perceived communication or public relations problem on Nordlund’s part.

At the January 1984 meeting, the board voted not to renew Nordlund’s contract beyond June 30, 1984. The non-renewal vote was undertaken in full compliance with state law. See Section 20-4-401(3), MCA.

Prior to the present action, Nordlund filed suit against the district for accrued vacation and sick leave and a settlement was reached in April 1985. Since July 1984, Nordlund has been employed as a vice-principal at Bozeman High School. In August 1985, Nordlund filed this suit against the Malta district for breach of contract, breach of the implied covenant of good faith and fair dealing, and negligent infliction of emotional distress. Nordlund filed an amended complaint alleging further that his termination was the result of a closed meeting of various school board members in violation of Montana law, and that the contract was “open-ended,” not a contract for a definite term. The court found an express contract for a term of one year and granted the district’s motion to dismiss the amended complaint.

The District Court dismissed the amended complaint under Rule 12(b)(6), M.R.Civ.P. A party may move for dismissal of an action if a complaint fails to state a claim upon which relief can be granted. In deciding this question, the District Court is only to consider matters raised within the pleadings. In other words, the District Court is not to engage in fact-finding when ruling on a motion to dismiss. Flemmer v. Ming (Mont. 1980), [190 Mont. 403,] 621 P.2d 1038, 1041, 34 St.Rep. 1916, 1919. We note that the court was particularly sensitive to limiting its ruling to matters raised in the pleadings, explaining that the ruling pertained to dismissal (Rule 12(b)(6), M.R.Civ.P), not summary judgment, (Rule 56, M.R.Civ.P.).

The first issue is whether the District Court erred in interpreting Nordlund’s employment contract as an express contract for a term of one year. Where the language of a written contract is clear and unambiguous there is nothing for the court to construe; the duty of the court is simply to apply the language as written to the facts of the case, and decide the case accordingly. Danielson v. Dan ielson (1977), 172 Mont. 55, 58, 560 P.2d 893, 894. Courts have no authority to change the contract or disregard the express language used. Williams v. Insurance Company of North America (1967), 150 Mont. 292, 434 P.2d 395. It is a question of law for the court to determine whether there exists ambiguity sufficient to submit the question of the parties’ intent to the trier of fact. Maxwell v. Sisters of Charity of Providence (D. Mont. 1986), 645 F.Supp. 937; Schell v. Peters (1966), 147 Mont. 21, 410 P.2d 152.

Section 20-4-401(3) states that a superintendent’s first two contracts shall run for a maximum of three years and thereafter from year to year provided that a majority of the school board does not vote to terminate at the end of the existing contract. We set out the statute to further illustrate this point:

“(3) The written contract of employment of a district superintendent or a county high school principal shall be authorized by the proper resolution of the trustees of the district or the joint board of trustees and executed in duplicate by the chairman of the trustees or joint board of trustees and the clerks of the districts in the name of the districts and by the district superintendent or the county high school principal. Such contract shall be for a term of not more than 3 years, and after the second successive contract, the contract shall be deemed to be renewed for a further term of 1 year from year to year thereafter unless the trustees shall, by resolution passed by a majority vote of its membership, resolve to terminate the services of the district superintendent or the county high school principal at the expiration of his existing contract. The trustees shall take such termination action and notify the district superintendent or the county high school principal in writing of their intent to terminate his services at the expiration of his current contract not later than February 1 of the last year of such contract.”

We concur with the District Court that Nordlund’s 1983-84 contract is sufficiently clear and unambiguous in its intent. Prior to signing this contract, Nordlund worked under a series of two year contracts from 1966 to 1983. In 1983, the school board, in compliance with Section 20-4-401(3), MCA, decided to offer Nordlund a one-year contract. In January 1984, the board voted unanimously not to renew Nordlund’s contract. This action also complied with Section 20-4-401(3). Again, it should be mentioned that superintendents are not able to acquire tenure in their positions. Since the contractual language is sufficiently clear, our duty, as stated in Danielson, is to simply apply the language to the facts of the case. There was no ambiguity for which the district judge was required to submit the case to a jury for a factual determination. See Schell v. Peters (1966), 147 Mont. 21, 410 P.2d 152. We therefore agree with the lower court that an express contract for a term of one year was negotiated between the parties.

The second issue is whether the District Court erred in concluding that Nordlund could prove no set of facts from which the obligation of good faith and fair dealing could be implied as a term of his employment contract. First of all, we disagree with Nordlund’s assessment of the lower court’s decision. The court dismissed the complaint on the basis that an express one-year contract was negotiated between the parties and that the facts alleged by Nordlund failed to suggest a breach of contract. We find the following case language applicable:

“Since the court concludes the defendants did not breach plaintiff’s employment contract, the defendants cannot be found to have acted unreasonably and in breach of the implied covenant of good faith and fair dealing attendant the subject contract.”

Maxwell v. Sisters of Charity of Providence (D. Mont. 1986), 645 F.Supp. 937, 939.

Here, the school district gave Nordlund proper notice of the non-renewal of his contract pursuant to Section 20-4-401(3), MCA, and dutifully performed until the contract came to an end on June 30, 1984. As in Maxwell, because no breach of contract occurred, it cannot be said that the school board breached the implied covenant of good faith and fair dealing.

The third issue is whether the District Court erred in dismissing the remaining counts of the complaint. We refer in part to our discussion on the first issue. The lower court ruled that the parties agreed to an express contract for a term of one year and that the district’s motion to dismiss would be granted because no set of facts would support Nordlund’s claim of a contract for an unspecified term, or “open-ended” term, as contended by Nordlund’s counsel. The court stated that in ruling on the motion to dismiss, it was looking at the wording of the complaint. The court was correct in its methodology, for as we stated earlier, a lower court, on a motion to dismiss, is only to consider matters raised within the pleadings. The court here was not fact-finding on the negligent infliction of emotional distress claim, the open meeting claim, or any other claim. We conclude that the procedure utilized was proper.

Affirmed.

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