text:
    In re the MARRIAGE OF NICK E. GAHM, Petitioner and Appellant, and MARLA J. HENSON, Respondent/ Respondent.
    No. 85-376.
    Submitted on Briefs April 30, 1986.
    Decided July 18, 1986.
    Rehearing Denied Aug. 26, 1986.
    722 P.2d 1138.

      Jackson & Rice, Gregory Jackson, Helena, for petitioner and appellant.
    Smith Law Firm, P.C., Robert J. Sewell, Jr., and John L. Hollow, Helena, for minor children.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Nick E. Gahm, petitioner below, appeals the decision of the Lewis and Clark County District Court denying his petition for modification of custody. The issues on appeal are whether the standard to be applied on a petition to terminate the custodial rights of a parent under a joint custody decree is the best interest of the child or serious endangerment of the child and whether the decision of the District Court is supported by substantial credible evidence. We affirm.

The appellant and Marla J. Henson, respondent, were married in Wichita, Kansas, in 1971. They had two daughters, the first born in 1976 and the second born in 1978. After moving to Montana, they were divorced in 1980. The parties were awarded joint custody of the children. The appellant returned to Wichita, Kansas shortly after the divorce and the children remained in Montana with respondent. In the summer of 1981, the children spent two months in Wichita. The parties made similar arrangements for the summer of 1982. Just before that visitation period ended, appellant filed for custody of the children in Kansas, enrolled them in school, and advised respondent she did not need to pick up the children. Respondent went to Kansas and appeared in court objecting to its jurisdiction. Appellant then withdrew his petition but refused to voluntarily return the children to respondent. In October 1982 the respondent picked up the children from school in Kansas and returned with them to her new home in Ephrata, Washington. She refused to let appellant communicate with the children for about eight months following this episode. The respondent moved to Wolf Creek, Montana, during this time and began using the surname “Gershon” to prevent appellant from finding her and the children.

In June 1983 appellant filed a petition for modification of custody. In his petition he asked that permanent custody be awarded to him with respondent to have limited visitation rights. According to the pretrial order, his allegations to support a change of custody were (1) failure to provide needed medical care to the children, (2) physical neglect and abuse of the children by respondent and her fiance,

(3) frequent refusal to allow appellant contact with the children, and

(4) inadequate religious training.

On March 7,1985, after the submission of briefs and argument, the District Court determined that appellant was seeking termination of respondent’s custodial rights. The order stated that appellant must establish serious endangerment to the children before the District Court would have jurisdiction to modify custody.

The District Court held trial on the question of whether serious endangerment to the children existed in May 1985. The resulting decision, issued on June 19, 1985, denied appellant’s petition for modification because he did not establish that the children’s present environment seriously endangered their physical, mental, moral or emotional health.

This Court addresses two issues on appeal:

(1) Whether the standard to be applied by the District Court on a petition to terminate the custodial rights of a parent under a joint custody decree is the:

a) best interest of the child test; or

b) serious endangerment of the child test.

(2) Whether substantial evidence supports the District Court’s findings of fact, conclusions of law, and judgment.

In holding that the serious endangerment standard applied in this case, the District Court found appellant’s request for permanent custody with limited visitation rights for respondent to be a request to terminate joint custody and make him sole custodian. Appellant argues that he is only seeking a modification of physical custody and that In re Marriage of Paradis (Mont. 1984), [213 Mont. 177,] 689 P.2d 1263, 41 St.Rep. 2041, controls. In Paradis, this Court examined the application of Section 40-4-219(l)(b), MCA, where modification of a joint custody decree had been requested. The father asked that he have physical custody during the school year rather than the mother because she moved to Hawaii and the child was integrated into his home. We held that the integration standard set out in Section 40-4-219(1) (b), MCA, did not apply to a dispute over the arrangement of physical custody and that it applied in the modification of joint custody “only where one joint custodian seeks to terminate the other’s right to legal as well as physical custody.” (Emphasis in original.) Paradis, 689 P.2d at 1265, 41 St.Rep. at 2043. Here, the appellant’s request is different than that made in Paradis. This appellant requested “permanent custody” of the children with “limited rights of visitation” to respondent. This is more than a request for a different physical custody arrangement like the request in Paradis and does not concern the integration standard. Asking that respondent be allowed only limited visitation is equivalent to asking for sole custody. Therefore, contrary to appellant’s assertion, Paradis, 689 P.2d 1263, 41 St.Rep. 2041, is not controlling authority for the case at bar.

In re the Marriage of Bergner and Owens, [(1986), 222 Mont. 305,] 722 P.2d 1141 decided this same day, is distinguishable from this case, also. It concerns Section 40-4-219(l)(b), MCA, on the integration of the child into the home as a basis for termination of joint custody rather than subsection (c) on serious endangerment.

After finding appellant’s request to be one to terminate joint custody, the District Court considered Section 40-4-224(3), MCA (1983), which provides that “any order for joint custody may be modified pursuant to Section 40-4-219 to terminate joint custody.” Section 40-4-219, MCA (1983), sets out the serious endangerment standard as follows:

“(1) The court may in its discretion modify a prior custody decree if it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child and if it further finds that:

“(c) the child’s present environment endangers seriously his physical, mental, moral, or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him . . .”

Subsection (c) is a jurisdictional prerequisite to modification of a custody decree. In re Custody of Dallenger (1977), 173 Mont. 530, 534, 568 P.2d 169, 172. The rationale for placing this heavy burden on the moving party is to preserve stability and continuity of custody for children. Dallenger, 173 Mont. at 533, 568 P.2d at 171. This policy does not change merely because the moving party uses a different label in his prayer for relief. The express purpose of the joint custody provisions are to assure a child frequent and continuing contact with each parent and to allow each parent to share the rights and responsibilities of raising a child. When one parent seeks to become permanent custodian and to relegate the other parent to limited visitation, the proposed arrangement is no longer joint custody. That parent should carry a heavy burden of proof before the court imposes such a change on a child. We hold that the District Court correctly applied the serious endangerment standard in the case at bar.

The second issue concerns whether substantial evidence supported the District Court’s decision to deny appellant’s request for a change in custody. This Court will not disturb the District Court’s findings in a custody dispute absent a clear abuse of discretion. This Court considers only whether substantial credible evidence supports the findings. Marriage of Perry (Mont. 1985), [217 Mont. 162,] 704 P.2d 41, 41 St.Rep. 2269.

Appellant disputes nearly all the findings pertinent to the District Court’s decision. Our review of the record and findings shows the decision and all the findings below had ample support in the record. Nonparty witnesses such as the children’s school teacher, the social worker who did a home study on respondent and the school nurse uniformly held the opinion that respondent provided a good environment for the children and that the children were well adjusted, healthy, outgoing and well cared for. Appellant offered no support for his contentions that the children had been exposed to violence, dishonest conduct or had not received adequate medical care. We hold that substantial credible evidence supported the District Court’s decision to not modify custody.

The judgment of the District Court is affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE MORRISON

license: Public Domain

text:
    In re the MARRIAGE OF JOHN C. BERGNER, III, Petitioner and Respondent, and ADELA M. (Bergner) OWENS, Respondent and Appellant.
    No. 85-595.
    Submitted on Briefs May 30, 1986.
    Decided July 18, 1986.
    722 P.2d 1141.

      Harrison, Loendorf & Poston, John P. Poston, Helena, for respondent and appellant.
    Baiz & Olson, Kenneth Olson, Great Falls, for petitioner and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Adela M. (Bergner) Owens appeals the order of the Eighth Judicial District Court which modifies a provision of a divorce decree awarding her and her ex-husband, John C. Bergner, III, joint custody of their two daughters. We affirm the modification.

Adela and John Bergner were married on August 11, 1972. Two daughters were born to the couple, Eva on July 26, 1973, and Katheryne Darcy (K.D.) on March 27, 1976. The couple separated in February of 1980. The decree of dissolution was. entered on March 12, 1981, in the Superior Court of California, in and for the County of Los Angeles. The decree awarded the parties joint legal custody of the children. Adela was named as the physical custodian and John was granted reasonable visitation.

The girls spent the summer of 1981 with their father. Thereafter, John, a member of the United States Air Force, was ordered to serve in Korea. One month prior to John’s return to California, he received a letter from Adela asking if he would take temporary physical custody of the girls upon his return.

“They [the children] are really looking forward to seeing you again. Chris [Adela’s present husband] has two part-time jobs. Things are tight. If by the end of this summer things are not any better we are going to ask you to keep them for a year and a half. That would be this summer, the school year of ‘83 — ‘84 and next summer. We already let the girls know and they are excited about it. We will know more about the situation by the end of this summer.”

John returned to California in May of 1983. The girls immediately came to live with him. John married his present wife, Cindy, that same month. Cindy also has a daughter. The two adults and three children currently live together as a family at Malmstrom Air Force Base in Montana.

It is undisputed that Eva and K.D. are integrated into their father’s family. They attend church and church functions together. They engage in numerous family-oriented outdoor and recreational activities. John and Cindy are very involved in school activities and take an active role in ensuring that each girl’s special educational needs are met. Adela testified that the integration was something she had anticipated and for which she had hoped when she suggested that John take the girls for an extended period of time.

Near the end of her allotted time with her father, Eva asked if she might continue to live with John the next school year. Adela initially consented to the request. However, one week later she changed her mind. John thereafter petitioned for modification of the custody arrangement, requesting that he be designated physical custodian. He subsequently amended his petition to request that he be awarded custody subject to the reasonable visitation rights of Adela. A hearing was held July 31, 1984, and a temporary order granting John custody was thereafter issued. Following a second hearing on April 12, 1985, the trial judge issued his final order granting John’s petition for modification of custody and awarding John custody of his two daughters subject to Adela’s right of reasonable visitation.

Adela appeals, raising the following issues:

1. Whether, pursuant to Section 40-4-219, MCA, the District Court had jurisdiction to modify the joint custody provision of the divorce decree?

2. Whether, in light of the evidence and the statutory prerequisites concerning the best interests of the children, the District Court erred in modifying the original joint custody provision?

3. Whether a parent entitled to joint custody of a child has the right to change his residence subject to the best interest of the child?

John and Adela were originally awarded joint custody of their children. Joint custody assures minor children frequent and continuing contact with their mother and their father. It further encourages the parents to share in the rewards, the privileges and the responsibilities of rearing their children. In re the Marriage of Paradis (Mont. 1984), [213 Mont. 177,] 689 P.2d 1263, 1264, 41 St.Rep. 2041, 2043. Section 40-4-222, MCA. Although joint custody is, at least theoretically, the ideal situation, it does not always satisfy the best interest of every child. Our Legislature thus provided in Section 40-4-224(3), MCA, for the termination of joint custody provided the terms of Section 40-4-219, MCA, are met. However, Section 40-4-219, MCA, may only be relied on to terminate a joint-custody arrangement. It may not be used to modify relationships within the joint-custody arrangement. See Paradis, 689 P.2d at 1264-1265, 41 St.Rep. at 2043.

Section 40-4-219, MCA, states in pertinent part:

“40-4-219. Modification. (1) The court may in its discretion modify a prior custody decree if it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child and if it further finds that: (a) the custodian agrees to the modification; (b) the child has been integrated into the family of the petitioner with consent of the custodian; (c) the child’s present environment endangers seriously his physical, mental, moral, or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him; or (d) the child is 14 years of age or older and desires the modification.”

Subsections (l)(a) through (l)(d) are jurisdictional prerequisites to modification. In re the Custody of Dallenger (1977), 173 Mont. 530, 534, 568 P.2d 169, 172. Once jurisdiction to modify is established using the integration criterion, the trial judge must determine whether a change has occurred in the children’s and/or the custodian’s circumstances and, if it has, whether that change has resulted in the children’s best interests being served by a modification of custody. In re the Marriage of Hardy and Hans (Mont. 1984), [212 Mont. 25,] 685 P.2d 372, 374, 41 St.Rep. 1566, 1568. Where joint custody is at issue, the children’s best interests must be served by the termination of the joint custody arrangement.

It is undisputed in this instance that Eva and K.D. have been integrated into John’s home with Adela*s permission and that this integration is the only jurisdictional prerequisite for modification which has been met. Unlike in In re the Marriage of Gahm and Henson, [1986, 222 Mont. 300,] 722 P.2d 1138, [43 St. Rep. 1281,] decided this same day, there is no allegation of serious endangerment to the children in this case.

Obviously, if a joint custody arrangement has been at all successful, the children have been integrated into the homes of both their parents. This is the primary goal of joint custody. Thus, when integration is the sole jurisdictional prerequisite for termination of joint custody, the District Court must be exceedingly cautious in determining whether the circumstances of the children or their custodian have changed and in determining whether, because of that change, the best interests of the children would be served by the termination of joint custody. Otherwise, the joint-custodian with physical custody of the children will be reluctant to allow the integration of the children into the other joint-custodian’s home for fear of having the joint custody arrangement terminated.

Here the trial judge found that Eva and K.D.’s circumstances had changed and that their best interests would be served by granting John custody of them. Where the decision of the trial judge is supported by substantial evidence, and not an abuse of discretion, it will not be reversed by this Court. Weber v. Weber (1978), 176 Mont. 144, 147, 576 P.2d 1102, 1104.

The trial judge found that Adela gave John temporary extended custody of the girls because of her unstable financial situation. The letter Adela wrote to John supports this finding. Although it is commendable for a parent to temporarily forego her children’s presence for the sake of a better life for them in the future, the parent must remain cognizant of the effect of the change of custody on the children. After all, the stability of a child’s homelife is vital to his or her well-being. Gilbert v. Gilbert (1975), 166 Mont. 312, 316, 533 P.2d 1079, 1081.

The change in physical custody caused a weighty change in Eva’s and K.D.’s circumstances. They have lived with John and Cindy since May of 1983. They consider Cindy’s daughter to be their younger sister. The family participates in innumerable activities together. The children appear to be the center of John and Cindy’s lives. The children have become established in the Great Falls School system. They have numerous friends on which to rely as a support network. A large part of their life centers around the church attended by the family.

In contrast, Adela did not see Eva and K.D. for the entire 15 months they were to be with their father. Letters and phone calls, while beneficial in their own right, do not equal the love and attachment developed through day to day contact. Thus we find substantial evidence to support the finding of the trial judge that Eva’s and K.D.’s circumstances have changed. The focus of their lives is now their father and his family, not their mother.

Section 40-4-212, MCA, lists the factors to be considered in determining the best interest of a child.

“40-4-212. Best interest of child. The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:

(1) the wishes of the child’s parent or parents as to his custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest;

(4) the child’s adjustment to his home, school, and community; and

(5) the mental and physical health of all individuals involved.”

The trial judge considered each of these factors. He twice interviewed each of the children in chambers. At her first interview, Eva expressed a preference to live with her father. K.D. stated only that she wanted to be with Eva. Neither girl expressed a preference at her second interview. Each parent wishes to have custody of the children.

Numerous findings of fact center on the interaction and interrelationship of Eva and K.D. with their parents. Other findings reflect the testimony of school and church officials who believe the children to be happy, content and flourishing in their present environment. Finally, there is no question but that all concerned are in excellent physical and mental health. Neither Adela nor John have any qualms about the other’s ability to raise the girls.

This is a difficult case. Adela and John are both loving, competent parents. The children like and love both parents. The children would most likely be happy with either parent following a period of adjustment. However, the trial judge, after viewing the parties concerned, interviewing the children and hearing testimony from numerous individuals, decided that the children’s best interests would be served by granting John custody. There is substantial evidence to support his determination.

“This Court also recognizes the superior position of the trial judge in such matters and will not disturb the trial court’s findings unless there is a mistake of law or a finding of fact not supported by credible evidence that would amount to a clear abuse of discretion.” (Citations omitted.)

Gilbert, 166 Mont. at 316, 533 P.2d at 1081.

Finally, Adela raises the issue of whether a parent has the right to change residence subject to the best interest of the child. The answer is of course an unqualified “yes.” Section 40-6-231, MCA. John was not awarded custody of the girls because Adela moved to Texas but because the girls’ interests will best be served by allowing them to remain in the family, school and community they have enjoyed for several years.

Affirmed.

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


text:
    In the MATTER OF D.S.N., a Youth in Need of Care.
    No. 86-99.
    Submitted on Briefs April 30, 1986.
    Decided July 18, 1986.
    722 P.2d 614.

      Cannon & Sheehy; Edmund F. Sheehy, Helena, for appellant.
    Mike Greely, Atty. Gen., Dorothy McCarter, Asst. Atty. Gen., Mike McGrath, County Atty., Peter Funk, Deputy Co. Atty., Anne Sheehy, Helena, for respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the court.

K.N. appeals the order of the First Judicial District Court, County of Lewis and Clark, terminating his parental rights to his natural child, D.S.N. We affirm the decision of the trial judge.

A petition for temporary investigative authority and protective services for D.S.N. was filed December 19, 1984. On January 3, 1985, the natural parents of D.S.N. stipulated to the investigation, the continued placement of the child in foster care and the development of a treatment plan for all parties concerned. K.N. further agreed to attend the in-patient alcohol treatment program at Galen State Hospital.

Following completion of the alcohol treatment program, mental evaluations were completed on K.N., D.S.N. and D.S.N.’s natural mother. Based on these evaluations, a treatment plan was established by the mental health evaluator, Sue Barton, and the family’s social worker, Joe Baumgardner.

The treatment plan contained four goals:

“1) Both parents must be mentally/emotionally able to provide for and respond to [D.S.N.’s] mental/emotional needs.

“2) Both parents must be economically able and capable to adequately satisfy their own and [D.S.N.’s] basic needs for food, clothing and shelter.

“3) Both parents must demonstrate they can live a life style conducive to the health and welfare of [D.S.N.] and be sufficiently able to parent, including being skilled in behavioral management.

“4) [D.S.N.] must be sufficiently mentally/emotionally adjusted and able to return to the care, custody and control of her father or, in the alternative, her mother.”

A hearing was held April 12, 1985. D.S.N. was found, by stipulation, to be a youth in need of care. The treatment plan was approved by the court and a hearing to review the parties’ progress was ordered in six months.

The natural mother made no effort to comply with the treatment plan, nor did she express interest in either legal or physical custody of her child. On the other hand, K.N. attempted to comply with his treatment plan and expressed an intense desire to have custody of his child.

K.N.’s treatment plan included mental health counseling by his clinical social worker, Sue Barton. At the end of the six-month period, Ms. Barton submitted a report to the District Court recommending that K.N.’s custodial rights be terminated. A petition pursuant to Section 41-3-607, MCA, was thereafter filed seeking to terminate K.N.’s parental rights. A two-day hearing was held and the petition was granted. The sole issue on appeal is whether the trial judge abused his discretion in terminating K.N.’s parental rights.

The relevant criteria for terminating parental rights are found in Section 41-3-609, MCA.

“41-3-609. Criteria for termination. (1) The court may order a termination of the parent-child legal relationship upon a finding that the circumstances contained in subsection (l)(a), (l)(b), or (l)(c), as follows, exist:

“(c) the child is an adjudicated youth in need of care and both of the following exist:

“(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and

“(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.

“(2) In determining whether the conduct or condition of the parens is unlikely to change within a reasonable time, the court must enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care. In making such determinations, the court shall consider but is not limited to the following:

“(a) emotional illness, mental illness, or mental deficiency of the parent of such duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time;

“(b) a history of violent behavior by the parent; (c) a single incident of life-threatening or gravely disabling injury to or disfigurement of the child caused by the parent;

“(d) excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent’s ability to care and provide for the child;

“(e) present judicially ordered long-term confinement of the parent;

“(f) the injury or death of a sibling due to proven parental abuse or neglect; and

“(g) any reasonable efforts by protective service agencies that have been unable to rehabilitate the parent.

“(3) In considering any of the factors in subsection

“(2) in terminating the parent-child relationship, the court shall give primary consideration to the physical, mental, and emotional conditions and needs of the child. The court shall review and, if necessary, order an evaluation of the child’s or the parent’s physical, mental, and emotional conditions.”

Each specific requirement found in the statute must be addressed by the court. In the Matter of R.B., Jr. (Mont. 1985), [217 Mont. 99,] 703 P.2d 846, 848, 42 St.Rep. 1055, 1058. We disagree with K.N.’s contention that the trial judge failed to address all of the requirements.

Finding of fact VII states that “[K.N.] has not made sufficient progress with therapy to be able to be considered a fit parent.” Finding of fact X states that “[K.N.] has continued to deny that problems exist with his previous care of [D.S.N.], making it virtually impossible to change his behavior.” Both findings demonstrate that despite his good intentions to do so, K.N. has been unable to obtain the first goal of his treatment plan, to become mentally and emotionally able to provide for his child’s mental and emotional needs. Other findings illustrate K.N.’s inability to achieve the third goal, that of living a lifestyle conducive to the health and welfare of the child and being sufficiently able to parent. For instance, finding of fact XIV refers to the continually unstable relationship between K.N. and his present wife. And, finding of fact XV reflects the experts’ opinions that K.N. may never be capable of caring for his child. Clearly, the general term “care for” includes being sufficiently able to parent.

Findings of fact VII, VIII and XVI combine to support a determination that K.N.’s condition rendering him an unfit parent is unlikely to change within a reasonable time. A reasonable time for D.S.N. is now. Section 41-3-609(3), MCA, mandates that in determining whether the parents’ condition will change within a reasonable time, primary consideration should be given to the needs of the child. Two experts testified that D.S.N.’s age (9) makes it imperative that she be provided with a loving, stable home as soon as possible. D.S.N.’s well-being will not withstand further delay.

Other findings reflect some of the factors recommended by the statute for use in determining whether the parent’s condition will change. Finding of fact XIII notes K.N.’s history of violent behavior toward his wife; finding of fact IX summarizes D.S.N.’s continual exposure to violence and alcohol while living with K.N.; and the findings as a whole reflect K.N.’s failure to benefit from the services provided.

There is no question but that the findings of the trial judge address each specific requirement found in Section 41-3-609, MCA. Furthermore, those findings are supported by substantial credible evidence.

Sue Barton testified in response to the question whether D.S.N. has time to wait for her father to become a fit parent as follows:

“No, I think [K.N.] could be coming to therapy weekly for two years hence and we could be in the same spot. I think that if [D.S.N.] is going to be a productive member of society and be anywhere near being emotionally healthy, she has to be in a place where she feels safe and protected and can go forward with talking about the kinds of things she’s experienced already under the care of her parents.”

Tr. p. 52.

Margaret Stewart, an expert in the child welfare area, supported Ms. Barton’s stance. She stated that although D.S.N.’s problems now lie under the surface, once she reaches adolescence, they will explode. D.S.N. needs to become stabilized now, before she reaches adolescence. (Tr. p. 90.)

Other testimony supports the conclusion that K.N. will be unable to change in the near future. Sue Barton testified that after six months of counseling, K.N. has been unable to achieve the first essential step toward improvement, the ability to trust another human being. (Tr. pp. 43-45.) This inability to trust results in an inability to relate to others in a normal manner. An individual with this problem will be unlikely to raise a child to be emotionally and mentally healthy. (Tr. p. 63.)

Other testimony related to K.N.’s inability to properly respond to D.S.N. as a parent. In his relationship with his daughter, K.N. is the child. He relies on D.S.N. for protection and satisfaction of his own needs. (Tr. pp. 43, 60.) Further, when K.N. drinks, he physically neglects D.S.N. and becomes prone to violence. (Tr. p. 46.) And, substantial evidence casts doubt on K.N.’s ability to refrain from drinking for an extended period of time. (Tr. pp. 39, 45, 150.)

The evidence unequivocally supports the conclusion that K.N. is unable to provide D.S.N. with the minimum care and resources needed to assure adequate growth and development. In the Matter of C.A.R. and P.J.R. (Mont. 1984), [214 Mont. 174,] 693 P.2d 1214, 1221, 41 St.Rep. 2395, 2402. The decision of the District Court is affirmed.

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


author: MR. JUSTICE WEBER

text:
    MICHAEL RIX, Plaintiff and Appellant, v. GENERAL MOTORS CORPORATION, Defendant and Respondent.
    No. 85-95
    Submitted April 8, 1986.
    Decided July 21, 1986.
    723 P.2d 195.

      Kelly & Halverson, P.C., Billings, Patrick Prindle argued, San Diego, Cal., for plaintiff and appellant.
    Moulton, Bellingham, Longo & Mather, Randy H. Bellingham argued, Billings, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

In 1978, Michael Rix was injured when the pickup he was driving was hit from behind by a 1978 General Motors Corporation (GMC) two ton chassis-cab, which had been equipped with a water tank after sale by the GMC dealer. Plaintiff sued GMC on a theory of strict liability in the Yellowstone County District Court. Following a jury verdict for GMC, plaintiff appeals. We reverse and remand for new trial.

Issues

1. Did the trial court properly instruct the jury on strict liability?

2. Is Rule 407, M.R.Evid., applicable to products liability under a strict liability theory, thus making evidence of subsequent design changes not admissible?

3. Did the District Court abuse its discretion by excluding disputed conversations between two insurance adjusters?

4. Is res ipsa loquitur applicable to products liability under a strict liability theory?

5. Did the District Court abuse its discretion by admitting GMC’s cross-examination of Dan Williams?

6. Did the District Court abuse its discretion by refusing to compel GMC to further supplement its discovery responses?

The pertinent portion of the revised pretrial order contained the following stipulated facts:

“1. That on the 4th day of August, 1978, on the Shepherd Road, near mile post number 1, in the County of Yellowstone, State of Montana, JOHN STANLEY FISHER was driving a 1978 GMC, two ton chassis-cab equipped with a water tank when it collided with the rear of the 1968 GMC pickup truck being operated by MICHAEL RIX and in which Michael Eaton was a passenger.

“2. That at the time and date of the . . . accident, the 1978 GMC two ton chassis-cab equipped with a water tank was 4-6 weeks old, having been purchased and delivery taken on or about June 28, 1978.

“3. GENERAL MOTORS CORPORATION designed, manufactured in part, assembled, and sold the certain 1978 two ton chassis-cab . . .

“4. [G]ENERAL MOTORS CORPORATION designed, manufactured in part, and assembled the . . . vehicle at its plant in Pontiac, Michigan.

“5. That on or about May 25, 1978, Town and Country GMC, an authorized dealer of General Motors Corporation took delivery of the aforesaid chassis-cab at the Silverdome in Pontiac, Michigan, and brought it to Billings.

“6. The failure of a brake line carrying hydraulic fluid was a cause of the brake failure occurring on the aforesaid vehicle on August 4, 1978.

“7. The 1978 two ton chassis-cab . . . was equipped with a single brake system offered as the standard system and not a split (dual) system.

“8. At the time the . . . 1978 two ton chassis-cab . . . was designed, manufactured in part, and assembled, . . . GENERAL MOTORS CORPORATION had the knowledge, capacity, and capability to incorporate a split (dual) brake system, and in fact did so as optional equipment, if ordered by purchaser . . .”

Plaintiff contends he was injured by an unreasonably dangerous 1978 two ton chassis-cab, which had been placed in the stream of commerce by GMC. Premised on a theory of strict liability, he maintains the product was unreasonably dangerous because of both manufacturing and design defects.

The parties stipulated that the accident occurred because of brake failure. Expert testimony from both parties established that the fluids necessary to the braking system had escaped when a brake tube came out of a nut where it fastened to the top of the Hydrovac, a booster unit. Witnesses also testified that the brake tube came out of the nut either because the tube broke or was improperly flared.

Plaintiff contends that the tube broke because there was a manufacturing defect in the tube, basically a bad flare, when the truck came off the assembly line. Plaintiff also contends that the brake system on the truck, a single system, was defectively designed, and argues that GMC’s knowledge of available technology coupled with the foreseeable use of the vehicle should have mandated a dual braking system, which provides extra braking power. Plaintiff maintains the accident would have been less severe or would not have happened had the truck been equipped with a dual system.

GMC agreed that the brake tube was defective, but contended that the tube had been altered after it left the GMC assembly line, so that the defective tube was not GMC’s responsibility. GMC also contended that the single system was neither a design defect nor unreasonably dangerous, and that the accident would have occurred even if the truck had been equipped with a dual brake system.

I

Did the trial court properly instruct the jury on strict liability?

A party has a right to jury instructions adaptable to his theory of the case when the theory is supported by credible evidence. Cremer v. Cremer Rodeo Land and Livestock Co. (Mont. 1981), 627 P.2d 1199, 1200, 38 St.Rep. 574, 576. It is reversible error to refuse to instruct on an important part of a party’s theory of the case. Northwestern Union Trust Co. v. Worm (Mont. 1983), [204 Mont. 184,] 663 P.2d 325, 327, 40 St.Rep. 758, 761. When the court undertakes to offer its own instruction on the issues raised, its statements must be complete. Tacke v. Vermeer Mfg. Co. (Mont. 1986), [220 Mont. 1,] 713 P.2d 527, 534, 43 St.Rep. 123, 131.

With regard to the GMC chassis-cab, plaintiff presented credible evidence to support his theories of defect in manufacture and defect in design. Plaintiff contends that the jury instructions taken as a whole failed to instruct the jury on design defect. The pertinent jury instructions are as follows:

“INSTRUCTION NO. 10

“I will now define the doctrine of strict liability to you. Keep in mind that this is only a general definition, and must be considered along with the specific instructions on the same topic which follow. The general principle of strict liability as it applies in the State of Montana is:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if:

“(a) the seller is engaged in the business of selling such a product, and

“(b) it is expected and does reach the user or consumer without substantial change in the condition in which it is sold.

“(2) The rule stated in Subsection (1) applies although

“(a) the seller has exercised all possible care in the preparation and sale of his product, and

“(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

“INSTRUCTION NO. 11

“The plaintiff must establish three essential elements in order to recover under his theory of strict liability. They are as follows:

“First, that the defendant General Motors Corporation manufactured and sold a product which at the time General Motors sold it was in a defective condition unreasonably dangerous to the consumer or user;

“Second, that the product was expected to and did reach the ultimate consumer without substantial change in the condition it was in at the time it was sold; and

“Third, that the defective condition in the product proximately caused injury to the plaintiff.”

Jury instruction #10 is the same as Section 402A Restatement (Second) of Torts (1965). Plaintiff did not make an objection at the time the instruction was offered. Plaintiff objected to jury instruction #11 “on the grounds that the second standard improperly states Montana law regarding tracing requirement back to the manufacturer.”

Both instructions expressly require that the plaintiff establish the chassis-cab reached the consumer without substantial change from the time of sale. With regard to plaintiff’s design defect theory, the instruction required him to prove that the brake system had not been altered after leaving the factory. While the instructions are adequate for a manufacturing defect theory, they misstate design defect law. The plaintiff is not required to prove that there has been no change in condition after sale of a product. So far as plaintiff’s design defect issue is concerned, the instruction should have focused on whether GMC improperly designed the product which it placed in the stream of commerce.

The same issue of whether a product must reach the consumer without substantial change in condition was discussed in Kuiper v. Goodyear Tire & Rubber Co. (Mont. 1983), [207 Mont. 37,] 673 P.2d 1208, 40 St.Rep. 1861. In Kuiper, with regard to design defect cases, this Court adopted the trial court’s holding that plaintiff prove the product was placed in the stream of commerce by defendant, and not that the product reached the consumer in substantially the same condition in which it left the manufacturer:

“The correct law governing plaintiff’s proof in a design case is found in Brown, 176 Mont. at 105, 106, 576 P.2d at 716, we stated:

“[1] In order to establish a prima facie case in strict liability based upon the above definition, a plaintiff must prove the following elements:

“(1) The product was in a defective condition ‘unreasonably’ dangerous to the user or consumer;

“(2) The defect caused the accident and the injuries complained of; and

“(3) The defect is traceable to the defendant.”

“There is no requirement that a design remain in substantially the same condition since obviously the design of the product does not change from the date of its original manufacture, absent some modification in design which was not an issue in this case.

“This issue was considered at length during the instruction conference between the court of counsel and it is the court’s concerted opinion that in a [product liability] design case, the changes in the product through wear, tear, or even abuse do not affect the question of whether the original design was defective and unreasonably dangerous. Design is judged not by the condition of the product, but the state of scientific and technical knowledge available to the designer at the time the product was placed on the market.”

Kuiper, 673 P.2d at 1221.

We hold that the District Court committed reversible error in giving the jury instructions #10 and #11 because they do not contain the law applicable to plaintiff’s design defect theory.

We will now discuss strict liability under a manufacturing defect theory. Under a manufacturing defect theory, the essential question is whether the product was flawed or defective because it was not construed correctly by the manufacturer:

“ [Manufacturing defects, by definition, are ‘imperfections that inevitably occur in a typically small percentage of products of a given design as a result of the fallibility of the manufacturing process. A [defectively manufactured] product does not conform in some significant aspect to the intended design, nor does it conform to the great majority of products manufactured in accordance with that design.” (Henderson, Judicial Review of Manufacturers' Conscious Design Choices: The Limits of Adjudication, 73 Col.L.Rev. 1531, 1543). Stated differently, a defectively manufactured product is flawed because it is misconstrued without regard to whether the intended design of the manufacturer was safe or not. Such defects result from some mishap in the manufacturing process itself, improper workmanship, or because defective materials were used in construction.” Caprara v. Chrysler Corp. (1981), 52 N.Y.2d 114, 436 N.Y.S.2d 251, 258, 417 N.E.2d 545, 552.

Restatement (Second) of Torts, Section 402A (1965) has been adopted by this Court as the applicable law with regard to strict liability under a manufacturing defect theory. The Restatement view is continued in Instruction #10, previously quoted in this opinion. In the context of strict liability under a manufacturing defect theory, we conclude that instructions #10 and #11, as given by the District Court, are adequate. On retrial if the plaintiff presents a manufacturing defect theory, Instructions #10 and #11 must be limited so that they apply only to the manufacturing defect aspect of the case.

We now discuss strict liability under a design defect theory. The focus is not whether the product was made according to specifications, but whether the specifications of the manufacturer were in some way defective. We adopt the following statement from Caprara, 436 N.Y.S.2d at 258-59, 417 N.E.2d at 552-53:

“In contrast, a design defect is one which “presents an unreasonable risk of harm, notwithstanding that it was meticulously made according to [the] detailed plans and specifications” of the manufacturer (Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 479, 426 N.Y.S.2d 717, 403 N.Y.2d 440 supra.) Thus, unlike manufacturing defects, design defects involve products which are made in precise conformity with the manufacturer’s design but nevertheless result in injury to the user because the design itself was improper.”

We have attempted to review the design defect cases of other states as well as law review articles and other discussions of design defect theory. At the present time there are significant contradictions between the approaches of various states, with no single theory being widely adopted. We conclude that it would not be helpful to compare and contrast these theories at length, but instead refer the reader to various works.

We do not attempt to set forth an analysis which addresses all facets of strict liability under a design defect theory. We render an opinion only with regard to the following facet of design defect: Was the GMC single brake system defective and unreasonably dangerous in view of the fact that a dual brake system was technologically feasible at the time of manufacture and was offered by GMC for sale? We do not rule upon the fact situation where a claim of design defect is made and where no alternative design is technologically feasible at the time of manufacture and was offered by GMC for sale? We do not rule upon the fact situation where a claim of design defect is made and where no alternative design is technologically feasible. See O’Brien v. Muskin Corp. (1983), 94 N.J. 169, 463 A.2d 298.

While many courts have attempted to define design defect by the terminology of unreasonably dangerous design or defective design, we do not find these tests to be helpful and choose not to adopt them. However, we do find that Section 104B of the Uniform Product Liability Act (1979) contains an excellent analysis of the factors which may be significant in an alternative design product liability case.

We concur with the Uniform Act that a balancing of various factors is required on the part of a jury. A jury should be instructed to weigh various factors according to the facts of each case and their own judgment. We conclude that the following elements should be considered for instructional purposes in an alternative design products liability case, recognizing that not all factors may be appropriate in every case, and also recognizing that additional factors should be considered where appropriate:

“(1) A manufacturer who sells a product in a defective condition unreasonably dangerous because of a design defect is subject to liability for harm thereby caused to the ultimate user.

“(2) A product may be in a defective condition unreasonably dangerous if the manufacturer should have used an alternative design.

“(3) In determining whether an alternative design should have been used, the jury should balance so many of the following factors as it finds to be pertinent at the time of manufacture:

“(a) The reasonable probability that the product as originally designed would cause serious harm to the claimant.

“(b) Consideration of the reasonable probability of harm from the use of the original product as compared to the reasonable probability of harm from the use of the product with the alternative design.

“(c) The technological feasibility of an alternative design that would have prevented claimant’s harm.

“(d) The relative costs both to the manufacturer and the consumer of producing, distributing and selling the original product as compared to the product with the alternative design.

“(e) The time reasonably required to implement the alternative design.”

We emphasize that it would be appropriate for the District Court to supplement the foregoing factors based upon the proof submitted in the course of trial. We reemphasize that the foregoing factors should be applied where a manufactured product is claimed to be unreasonably dangerous because a safer alternative design was available to the manufacturer. We do not rule upon other facets of this complex area of the law.

II

Is Rule 407, M.R.Evid., applicable to products liability under a strict liability theory, thus making evidence of subsequent design changes not admissible?

According to Rule 407, M.R.Evid., subsequent remedial changes cannot be admitted into evidence to prove negligence or culpable conduct:

“Rule 407. Subsequent remedial measures.

“When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.”

The District Court concluded that Rule 407, M.R.Evid., was applicable to strict liability actions and that evidence of subsequent design modification could only be introduced for “other purposes.”

Plaintiff maintains that Rule 407 is inapplicable in the context of strict liability, because neither negligence nor culpable conduct is at issue. Plaintiff argues that he should be allowed to prove that GMC has dropped the single brake system, and installs only the dual brake system on its trucks. GMC contends the fact that it no longer offers single brake systems is irrelevant and inadmissible under Rule 407, M.R.Evid.

In a strict liability action under a manufacturing defect theory, the issue is whether the manufactured product left the factory in a flawed condition because it did not conform to original design specifications. See Caprara, 52 N.Y.2d 114, 436 N.Y.S.2d 251, 258, 417 N.E.2d 545, 552. Under a manufacturing defect theory one assumes that the design is safe and had the product been manufactured in accordance with the design, it would have been safe for consumer use. Here, plaintiff sought to prove a manufacturing defect by showing that the brake line was not manufactured according to specifications because it contained a bad flare, which allowed the brake line to come out of the nut where it was fastened to the top of the Hydrovac. Consequently, under a manufacturing defect theory, evidence of design modification is without probative value and irrelevant because the safeness of the original design is not an issue. In the context of strict liability under a manufacturing defect theory, we conclude that evidence of subsequent design change is not admissible unless it is to be admitted for some other purpose.

In a strict liability action under a design defect theory, the question is whether the design specifications were partly or totally defective. As stated previously, a design is defective if at the time of manufacture an alternative designed product would have been safer than the original designed product and was both technologically feasible and a marketable reality. Again the time frame under scrutiny is the time of manufacture and not any other time. We conclude that evidence of subsequent design modification is not probative of whether a product was defectively designed at the time of manufacture. We do recognize that evidence of design change may be probative for other purposes such as technological feasibility and impeachment. As an example, evidence of subsequent design change may be admitted to show technological feasibility where the manufacturer has controverted technological feasibility of an alternative design. See Cohen v. General Motors Corporation (1984), 61 N.Y.2d 261, 473 N.Y.S.2d 378, 382, 461 N.E.2d 864, 868. None of these exceptions were present here.

We hold that Rule 407, M.R.Evid., is applicable to strict liability actions under both manufacturing and design defect theories, making evidence of subsequent design changes generally not admissible.

Ill

Did the District Court abuse its discretion by excluding disputed conversations between two insurance adjusters?

After the accident, John Fisher, driver of the GMC truck, filed a claim for damages with Farmers Insurance Group [Farmers]. It was estimated that the GMC chassis-cab sustained $2,300 worth of damages. On August 15, eleven days after the accident, Royal Globe Insurance Company of America, which insures GMC, hired General Adjustment Bureau (GAB) in Billings to investigate the accident. Tom Ramboldt investigated and adjusted the accident for GAB.

Ray Olson investigated the accident for Farmers. On September 22, 1978, approximately 48 days after the accident, Farmers paid Mr. Fisher for property damages to the 1978 GMC two ton chassis-cab.

Whether Mr. Olson [Farmers] talked to Mr. Ramboldt [GAB] prior to settlement with Mr. Fisher [driver of truck] cannot be gleaned from the record. However, after settlement with Mr. Fisher, Farmers subrogated its claim against GMC, and Mr. Olson talked with Mr. Ramboldt on a number of occasions. Mr. Olson was prepared to testify that on at least two occasions Mr. Ramboldt advised him that GMC would accept liability. On both occasions that the alleged admissions were made, Mr. Olson recorded his reflections on a speed memo.

Mr. Rix contends that Mr. Ramboldt’s statements are admissible pursuant to Rule 801(d)(2)(D), M.R.Evid., which states:

“(d) Statements which are not hearsay. A statement is not hearsay if:

(2) Admission by party-opponent, the statement is offered against a party and is . . . (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of that relationship ...”

Mr. Rix maintains Mr. Ramboldt’s statements, as an agent of GMC, are admissions by a party-opponent and properly admissible. GMC denies that Mr. Ramboldt ever accepted liability. GMC also maintains that even if the statements were admissions by a party opponent, they are inadmissible under Rule 408, M.R.Evid., which protects statements made in the course of compromise negotiations:

“Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible . . .”

A real problem exists because the facts are not shown in a complete manner in the record. We conclude that the incomplete record eliminates our ability to determine this issue. Should the question be raised at retrial, the District Court should consider all of the facts before ruling on admissibility, including whether Mr. Ramboldt was an agent of GMC and whether he was acting in the course and scope of that agency, and whether compromise negotiations had taken place between Mr. Olson and Mr. Ramboldt.

IV

Is res ipsa loquitur applicable to products liability under a strict liability theory?

Mr. Rix contends that his case was prejudiced when his jury instructions on res ipsa loquitur were refused and the District Court failed to substitute other res ipsa loquitur jury instructions. This Court has stated previously that, as a general rule, res ipsa loquitur is applicable to products liability under a negligence theory, but is not applicable to products liability under a strict liability theory. Brothers v. General Motors Corp. (1983), 202 Mont. 477, 658 P.2d. 1108, 1110, 40 St.Rep. 226, 229.

In Brothers, while we ruled against res ipsa loquitur under a strict liability theory, we reaffirmed our commitment to a flexible standard of circumstantial evidence, as follows:

“Circumstantial evidence, as well as direct evidence, may be used to show a defect. A plaintiff does not meet his burden of proof, however, by merely establishing an accident occurred . . . .

“[circumstantial evidence can be met by proof of the circumstances of the accident, similar occurrences under similar circumstances, and elimination of alternative causes . . .”

Brothers, 658 P.2d at 1109-10 (Citations omitted.) We conclude this case presents no unique circumstances that would warrant deviation from the general rule. We affirm the District Court’s exclusion of res ipsa loquitur jury instructions.

V

Did the District Court abuse its discretion by admitting GMC’s cross-examination of Dan Williams?

Dan Williams was the owner of Berkley Machine & Equipment, which shortened the frame of the 1978 GMC two ton chassis-cab so that the truck could be equipped with a water tank. The employee who did the actual shortening of the frame did not testify because he could not be located. On cross-examination, Dan Williams was asked if in the past he had “actually drilled through frames and drilled into a brake line.” He answered, “Yes. I think anybody that has done this work very long has done it one time or another.” The next question, which logically followed, was objected to on the grounds it called for speculation. The question was “could that have happened when you were working on Mr. Fisher’s [1978 GMC].” With continuing objections to this whole line of questions, Mr. Williams essentially answered that it was possible but not probable.

Mr. Rix contends that the opinion advanced by Williams was not rationally based or helpful to the determination of the facts in issue. According to Rule 701 M.R.Evid., a lay witness may give an opinion when two criteria are established: the opinion is “rationally based on the perception of the witness and helpful to . . . the determination of a fact in issue.”

Both parties agreed that the brake line was defective, but disagreed as to whether it left the factory in a defective condition or was later altered. GMC maintained the brakeline could have been altered at Berkley Machine and Equipment when the truck frame was shortened.

Undoubtedly, the question of whether Dan Williams’ shop could have altered the line was helpful to determining a major fact issue. Also, because the employee who did the actual shortening of the frame was not available as a witness, the owner of the shop was an appropriate witness to respond to questioning with regard to shortening truck frames and altering brake lines. We conclude the District Court did not abuse its discretion in admitting the cross-examination of Dan Williams.

VI

Did the District Court abuse its discretion by refusing to compel GMC to further supplement its discovery responses?

The standard of review is as follows:

“The District Court has the inherent discretionary power to control discovery. That Power is based on the District Court’s authority to control trial administration. In controlling discovery the District Court must regulate traffic to insure a fair trial to all concerned, neither according one party an unfair advantage nor placing the other party at a disadvantage . . .

“We will reverse the District Court only when its judgment may materially affect the substantial rights of the appellant and allow the possibility of a miscarriage of justice.”

Massaro v. Dunham (1979), 184 Mont. 400, 404-05, 603 P.2d 249, 251-52 (Citations omitted.)

Rix contends that GMC’s failure to answer certain interrogatories denied him the opportunity to utilize significant information. GMC contends it adequately and fully answered the interrogatories.

The issue was discussed and ruled upon by the District Court. The District Court denied the motion on the basis that the requested interrogatories had been previously answered.

We have reviewed the interrogatories, depositions and supplemental memoranda. We conclude that the information sought by the plaintiff was made available with the exception of the request for the names of particular persons involved in testing and inspecting during manufacturing in 1978. GMC indicated there were thousands of inspections and tests performed by a great number of people. The interrogatories were overly broad and burdensome under the facts of the case. We conclude that the District Court did not abuse its discretion.

We reverse and remand for a new trial in conformity with this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, MORRISON, GULBRANDSON and HUNT and MR. CHIEF JUSTICE HASWELL, Retired, sitting for MR. JUSTICE SHEEHY, concur.

        FOOTNOTES

      1. Lee v. Butcher Boy (1985), 169 Cal.App.3d 375, 215 Cal.Rptr. 195; Ford Motor Co. v. Pool (Tex.Civ.App. 1985), 688 S.W.2d 879; Dart v. Wiebe Mfg., Inc. (1985), 147 Ariz. 242, 709 P.2d 876; Prentis v. Yale Mfg. Co. (1984), 421 Mich. 670, 365 N.W.2d 176; O’Brien v. Muskin Corp. (1983) 94 N.J. 169, 463 A.2d 298; Nerud v. Haybuster Mfg., Inc. (1983), 215 Neb. 604, 340 N.W.2d 369; Lester v. Magic Chef, Inc. (1982), 230 Kan. 643, 641 P.2d 353; Caprara v. Chrysler Corp. (1981), 52 N.Y.2d 114, 436 N,Y.S.2d 251; 417 N.E.2d 545; Boatland of Houston, Inc. v. Bailey (Tex. 1980), 609 S.W.2d 743; W. Prosser & W. Keeton, THE LAW OF TORTS, Section 99 (5th ed. 1984); W. Kimble & R. Lesher, Products Liability, Sections 131-38 (1979); Birnbaum & Wrubel, “State of the Art” and Strict Products Liability, 21 Tort & Insurance L. J. 30 (1985); Note, The Design Defect Test in Washington: The Requisite Balance, 8 U.Puget Sound L. Rev. 679 (1985); Note, Practicable Alternatives and Design Defects: A Plaintiff’s Burden? —Nerud v. Haybuster Mfg., Inc., 18 Creighton L. Rev. 477 (1985); Note, Strict Products Liability And The Risk Utility Test For Design Defect: An Economic Analysis, 84 Colum. L. Rev. 2045 (1984); Twerski, From Risk-Utility to Consumer Expectations: Enhancing the Role of Judicial Screening in Product Liability Litigation, 11 Hofstra L. Rev. 861 (1983). See Also the Uniform Product Liability Act (1979) and the proposed interstate commerce “Product Liability Act” (1983), which was never ratified by the U.S. Congress.

      . 104(B) The Product Was Defective in Design.

      The harm was caused because the product was defective in design. In determining whether the product was defective, the trier of fact shall consider whether an alternative design should have been utilized, in light of:

        (1) The likelihood at the time of manufacture that the product would cause the harm suffered by the claimant;
      (2) The seriousness of that harm;
      (3) The technological feasibility of manufacturing a product designed so as to have prevented claimant’s harm;
      (4) The relative costs of producing, distributing, and selling such an alternative design; and
      (5) The new or additional harms that may result from such an alternative design.


author: MR. JUSTICE SHEEHY

text:
    WESTMONT TRACTOR CO., a corporation, Plaintiff and Respondent, v. RONALD LEIGHTY, Defendant and Appellant.
    No. 86-98.
    Submitted on Briefs May 9, 1986.
    Decided July 22, 1986.
    722 P.2d 617.
    Sverdrup & Spencer, Scott B. Spencer, Libby, for defendant and appellant.

      Murray, Kaufman, Vidal & Gordon, Daniel W. Hileman, Kalispell, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Ronald Leighty appeals from an opinion and deficiency judgment against him of $8,146.53 entered by the District Court of the Nineteenth Judicial District, Lincoln County. We affirm.

There is one issue on appeal. Did the District Court err in allowing a deficiency judgment?

Westmont Tractor Co. sued Ron Leighty for a deficiency of $39,537.82. That deficiency arose out of a transaction in which Leighty, a logger, purchased three pieces of logging equipment. In September 1974, he purchased two Model 21 A Tree Farmers. They had substantially similar serial numbers: SN SFL205 and SN 6FE204. They will be referred to as 205 and 204. In 1977, Leighty purchased a Model 30 Tree Farmer. The obligations were combined into a single note.

The Model 30 never worked properly. Numerous attempts to fix it failed. Leighty lost a great deal of time and money in attempting to repair it, and could not make payment on the note. Leighty attempted to return the Model 30 to Westmont, but Westmont refused to accept it. Finally, in the spring of 1978 Leighty returned the Model 30 and the Model 21 A #204 to Westmont. Westmont agreed to sell the machines and credit the sale price to Leighty’s account, but told Leighty he would be liable for any deficiency. These machines were sold at private sale. The Model 30 was sold for $7,500 leaving a deficiency of $17,000.00. The Model 21 A #204 was sold for $9,000.00 leaving a deficiency of $8,146.53.

In September, 1980 Westmont repossessed the remaining Model 21 A #205. Westmont sold the #205 at public auction to itself for $7,500.00 leaving a deficiency of approximately $14,500.00.

In 1983, Westmont sued Leighty for $39,537.82. the District Court held that Westmont sold the Model 30 with knowledge that it would be used for logging in rugged terrain, and that Westmont knew or should have known it was unfit for that purpose. Therefore the District Court denied the deficiency judgment on the Model 30. The District Court held the private sale of the Model 21 A #204 was properly conducted. It entered a deficiency judgment against Leighty for $8,146.53 on the transaction.

As to the public sale of the Model 21 A #205, the District Court found numerous problems. The notice of public sale sent to Leighty stated the sale would be July 30,1980. The sale was held August 27, 1980. A newspaper advertisement in the Missoulian on August 24 listed the sale as August 27 but referred to Model #204. All the notices sent to Leighty refer to 204, while the accounting for the same sale lists 205 as the serial number. Prior to the sale, Leighty was billed for over $4,700.00 in repairs. No showing of reasonableness of repairs was made. Due to these problems, the District Court refused to grant a deficiency of judgment against Leighty on the Model 21 A #205.

Westmont contends this appeal should be dismissed for failure to file an undertaking for costs on appeal as stated in Rule 6(a) M.R.App.Civ.P. Westmont argues the posting of bond is jurisdictional. Indeed, under Section 9733 R.C.M. (1935) posting a bond for costs on appeal was jurisdictional. Pappas v. Braithwaite (1946), 116 Mont. 606, 173 P.2d 116; Sykes v. Republic Coal Company (1943), 113 Mont. 619, 139 P.2d 543. However that is no longer true under the current rules. The only step necessary to perfect an appeal is filing a notice of appeal within time allowed by Rule 5 M.R.App.Civ.P. “While the filing of a bond for costs may be required, failure to file the bond does not affect the validity of the appeal.... [Fjailure to effect timely filing of the bond should not, without more, result in dismissal.” 9 Moore’s Federal Practice Section 207.02. In this case there are no other circumstances that mandate dismissal.

Next Westmont contends that the appeal should be dismissed because the judgment against Leighty has been partially satisfied, and a decision on appeal becomes ineffective. However, where, as in this case, the judgment was only partially satisfied by execution, it remains a proper subject for judicial review. Twenty-Seventh Street, Inc. v. Johnson (Mont.1986), [220 Mont. 469,] 716 P.2d 210, 211-12, 43 St.Rep. 534, State v. Rafn (1956), 130 Mont. 554, 557, 304 P.2d 918, 919-20.

Leighty contends the District Court erred in granting a deficiency judgment on the Model 21 A #204 which was voluntarily returned by Leighty and sold at private sale.

Leighty apparently argues that while he voluntarily returned the Model 21 A, after it had been returned Westmont sent a notice of repossession sale and sold the equipment at public sale. Leighty however does not raise sufficiency of the evidence. Instead, he contends the actions of Westmont changed the sale from a consent sale to a repossession sale for which notice is required under Montana Law. Bank of Sheridan v. Devers (Mont. 1985), [217 Mont. 173,] 702 P.2d 1388, 42 St.Rep. 1107; Wippert v. Blackfeet Tribe of the Blackfeet Indian Reservation (Mont. 1985), [215 Mont. 85,] 695 P.2d 461, 42 St.Rep. 200; Farmers State Bank v. Mobile Homes Unlimited (1979), 181 Mont. 342, 593 P.2d 734. Appellant contends the notice of public sale was deficient.

The District Court found that the Model 21 A #204 was voluntarily returned for a private sale. The facts as set forth by the District Court in its findings of fact are controlling on appeal unless clearly erroneous. Rule 52, M.R.Civ.P. St.John’s Hospital v. State Board of Health (1973), 161 Mont. 406, 409, 506 P.2d 1378, 1379.

There is no merit in Leighty’s claim that the nature of public sale was defective because, as the District Court held, the machine was returned for and sold at private sale. Accordingly, we affirm the judgment of the District Court.

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


author: MR. JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff/Respondent, v. JOHN WALTON, Defendant/Appellant.
    No. 85-619.
    Submitted on Briefs April 24, 1986.
    Decided July 22, 1986.
    722 P.2d 1145.

      Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, Arnie A. Hove, McCone Co. Atty., Circle, for plaintiff/ respondent.
    Francis J. McCarvel, Glasgow, for defendant/appellant.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from a jury verdict in the District Court of the Seventh Judicial District in and for McCone County, Montana. The defendant was found guilty of a single felony count of conspiracy to commit sale of dangerous drugs and was sentenced to three years suspended with conditions, in the Montana State Prison, and fined $8,000. We affirm.

The appellant, John Walton (Walton), his wife Ethel, and two of their sons, Fred and John Jay, were charged with two felony counts of sale (growing), conspiracy to sell and solicitation to sell dangerous drugs. The allegation was that Walton and the others charged had engaged in an illegal conspiracy to cultivate marijuana on the ranch owned by Walton in northern McCone County. Prior to trial the solicitation charge was dismissed as to Walton, John Jay, and Fred. At the conclusion of the State’s case, the court granted defense counsel’s motion to dismiss Ethel Walton as a defendant.

Walton’s daughter, Donna Tyson, her minor children, her husband, Bobby Dale Tyson, and Tyson’s brother, moved from Texas to an abandoned farmstead owned by Walton. After consulting with Walton about the proper location, they built a greenhouse and planted marijuana.

Cottonwood trees on Walton’s property were used in the construction of the greenhouse. Walton permitted the use of his pump to supply the plants with necessary water. He paid for the materials to build an A-frame structure around the greenhouse in order to camouflage it. After the marijuana was planted, it was dried and stripped, divided into one-pound bags and taken by the Tyson brothers to Texas to be sold. They were apprehended by Texas law enforcement officials and gave statements revealing the entire scheme.

The jury acquitted Fred Walton on all charges. John Jay Walton and John Walton were found guilty of conspiracy to commit criminal sale of dangerous drugs and John Jay also was found guilty of a lesser included offense, possession of dangerous drugs, a misdemeanor. John Walton is the only defendant to appeal.

Walton presents three issues on appeal: (1) Whether the trial judge erred in not granting a mistrial due to the erroneous and prejudicial remarks of the county attorney during voir dire of the jury; (2) whether the trial judge erred and abused his discretion in admitting one of the State’s exhibits, because a sufficient chain of evidence was not established; and (3) whether accomplice testimony was properly corroborated.

Walton argues an improper remark made by the prosecutor during voir dire was prejudicial. The prosecutor said he had presented certain evidence to the District Judge to be reviewed prior to his granting the prosecutor permission to file charges. In fact he had presented only an affidavit. Defense counsel objected to the prosecutor’s statement, fearing the jury would be mislead. The court admonished the prosecutor to correct himself, which he did. It has been held when a prosecutor’s improper statement is disclaimed or corrected there is no error. U.S. v. Parker (D.C. Cir. 1969), 419 F.2d 679. After the jury was selected, the court gave the following instruction:

“Now, ladies and gentlemen, I instruct you that those remarks by Mr. Hove were improper, that they were incorrect, and that they were erroneous, and that you are to disregard such statements and must not in any way consider them relative to this case.”

The judge’s admonition to the prosecuting attorney and his cautionary instruction to the jury are sufficient in this case not to result in prejudice to the defendant. The controlling question should be the good faith of counsel in saying what he said and the likelihood the defendant was unfairly prejudiced by what was said. Gladden v. Frazier (9th Cir. 1968), 388 F.2d 777, 779.

Walton offers no evidence he was prejudiced by the remark nor can we find any. Probably the best evidence that the jury was not prejudiced by the prosecutor’s remark is its verdict. Fred Walton was acquitted of all charges, and John Walton and his son John Jay were acquitted on one count of felony sale of dangerous drugs. A jury influenced by an inadvertent remark made by the prosecutor during voir dire would not throw out most of the State’s case. See State v. Toner (1953), 127 Mont. 283, 289, 263 P.2d 971, 974. After both sides had rested, the jury was instructed they were not to infer guilt by virtue of the fact the defendants were brought to trial.

Because Walton cannot show prejudice by a remark his counsel admits was inadvertent, it is not error for the court to deny his motion for a mistrial. We refuse to reverse on the mere ground of a corrected misstatement when there is no evidence of either bad faith on the part of the prosecutor or prejudice to the defendant.

Walton argues the state should be required to account for the seized marijuana at all times prior to its seizure by law enforcement officials. Walton misinterprets the chain of custody rule, which does not require the police or prosecutors to account for the possession of evidence before it comes into their hands. A continuous chain of possession must be established after acquisition of the evidence, not before. State v. Thomas (1975), 166 Mont. 265, 532 P.2d 405. If the defendant claims the evidence was tampered with before the prosecution acquired it, he has the burden “to show affirmatively that tampering had taken place.” Thomas, 166 Mont. at 268, 532 P.2d at 407.

“It is not necessary for the State to prove it would be impossible to tamper with the exhibits. [Cites omitted.] Rather the State need only make a prima facie showing that there had been no substantial change in the evidence. State v. WongFong (1925), 75 Mont. 81, 87, 241 P. 1072, 1074.”

State v. Wells (1983), 202 Mont. 337, 356, 658 P.2d 381, 391.

Walton misinterprets Wells and WongFong when relying on them to support his position. He argues the State failed to make a prima facie case there was no substantial change in the evidence, citing various examples of conflicting evidence about the quantity of marijuana taken from Montana to Texas and the quantity seized by the Texas authorities. However, that evidence is irrelevant to consideration of possible chain of custody problems because the marijuana was not in the custody of law enforcement officials. Walton offered no testimony the evidence was tampered with after it was in possession of the Texas authorities.

Ultimately the argument is academic, because the only charge involved in this appeal is that of conspiracy. This particular evidence is only incidental in establishing conspiracy.

Walton’s third argument in this case is totally lacking any corroborative evidence.

“Montana case law concerning corroboration is well settled. It provides that the corroborating evidence may be supplied by the defendant or his witnesses; it may be circumstantial evidence; it need not be sufficient to sustain a conviction or establish a prima facie case of guilt; and, it need only tend to connect the defendant with the crime as charged. Where the claimed corroboration, however, shows no more than an opportunity to commit a crime, simply proves suspicion, or is equally consonant with a reasonable explanation pointing toward innocent conduct on part of the defendant, the evidence is to be deemed insufficient. [Citations omitted.]”

State v. Mitchell (Mont. 1981), 625 P.2d 1155, 1158, 38 St.Rep. 487, 489-90.

Uncorroborated testimony of an accomplice cannot sustain a conviction . . . However, it is not necessary that the accomplice be corroborated as to every material fact to which he testifies. State v. Yegen (1929), 86 Mont. 251, 254, 283 P. 210, 211. Generally speaking, an accomplice is one who knowingly, voluntarily, and with a common intent with the principal offender unite in the commission of a crime. State v. Jenkins (1923), 66 Mont. 359, 365, 213 P. 590, 592.

Because this appeal is from a conviction of conspiracy, only testimony which corroborates testimony of accomplices by tending to connect Walton with the conspiracy will be considered. There is corroboration of accomplice testimony by at least two witnesses. Donna Tyson’s sons, Lee and Russell Munyan, testified to John Walton’s active involvement in the enterprise. It should be noted Fred Walton was charged after he gave an account of his discovery of the growing marijuana. Accomplice testimony was properly corroborated.

The judgment of the District Court is affirmed.

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


author: MR. JUSTICE GULBRANDSON

text:
    HOLLY A HANSEN, f/k/a Holly A. Jurgens, Plaintiff and Appellant, v. JAY C. JURGENS, Defendant and Respondent.
    No. 85-612.
    Submitted on Briefs April 4, 1986.
    Decided July 24, 1986.
    722 P.2d 1151.

      Gary G. Doran, Kalispell, for plaintiff and appellant.
    Jeffrey D. Ellingson, Kalispell, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Jay C. Jurgens, the father, appeals from the amended findings of fact, conclusions of law and order entered September 30, 1985, in Flathead County District Court. He contends that the second judge, after hearing motions to amend and for a new trial, erred in amending the first judge’s original findings, conclusions and order. He asks this Court to reverse the amended findings, conclusions and order and remand with instructions to reinstate the original order. We reverse and remand for clarification.

The parties were married in Coeur D’Alene, Idaho, in 1972. They had one child, Thomas Jason Jurgens who was 12 years old at the time of the hearing below. When the marriage was dissolved in 1974, the decree awarded custody of Thomas to the mother, respondent here, and required the father to pay $50 per month in child support. This was a result of an agreement of the parties and both judges below found this amount to have been unconscionably low. The father increased his payments voluntarily to $75 per month in October 1979 and to $100 per month in May 1985.

Presently, the mother earns an average take-home salary of $869.98 per month. She has income of $200 per month from a trust which has a principal balance of about $8,000. She receives $140 per month in child support for a daughter from a subsequent marriage. The father is employed by Jurgens Construction, Inc. He is president and holds 50% of the shares in that corporation. The remaining shares are held by his current spouse. He testified that the corporation currently has a negative net worth and grosses between $60,000 and $300,000 per year. Any net income is reinvested in the business and he does not draw a salary. He also receives $267.82 per month from a contract for deed. Of the living expenses of $2,600 per month for the father, his current spouse, and her two children, about $1,900 comes from sources other than his income.

The mother requested modification of the child support award in June 1985. The father responded and requested custody of the child in July 1985. The first judge, after a hearing, issued findings of fact, conclusions of law and order on August 30, 1985. The second judge sat on the mother’s motions to amend and for a new trial. He issued the amended findings of fact, conclusions of law and order on September 30, 1985.

Both sets of findings state inflation has greatly affected the purchasing power of a dollar since child support had first been established. The first set states the purchasing power to be 60% of that in 1974 and the second set states the purchasing power to be about half. Both sets of findings state the costs of raising a twelve year old boy to be greater than that of pre-school child. The first set finds the current cost of raising the child to be $200 per month, the father’s earning capacity to be $1,330 per month, and sets child support at $105 per month by applying the formula in In re the Marriage of Carlson (Mont. 1984), [214 Mont. 209,] 693 P.2d 496, 41 St.Rep. 2419. The second set does not refer to the cost of raising the child, finds the father capable of earning $1,600 per month, and sets child support at $250 per month by referring to local district court guidelines and Department of Revenue guidelines.

The original order leaves custody of the child with the mother. It finds that the father’s motion for a change in custody was not vexatious or for purposes of harassment, and directs each party to bear their own attorney’s fees and costs. The amended order awards the mother her attorney’s fees and costs for bringing the action and defending against the father’s motion for modification of custody. It leaves custody with the mother. The orders differ on the extent of visitation awarded the father. The original order extends his visitation to the summer months except for two weeks prior to time school begins in the fall. The amended order continues visitation as it was prior to this action.

The father appeals from the amended order raising the issue of whether the original order should be reinstated. We address this issue in two parts:

(1) Whether the second judge erred by amending the original findings of fact, conclusions of law and order.

(2) Whether the original decision is supported by substantial credible evidence.

In the first issue, the father claims that the original findings should not have been set aside unless they were clearly erroneous, citing Rule 52(a), M.R.Civ.P. That portion of Rule 52 governs action by a reviewing court in an appeal rather than the circumstances presented here. In State v. Carden (1976), 170 Mont. 437, 555 P.2d 738, this Court stated:

“[J]udges of coordinate jurisdictions sitting in the same court and in the same case may not ordinarily overrule the decision of each other ... It is simply a rule of practice that articulates the sound policy that when an issue is once judicially determined, that should be the end of the matter . . .” (Citations omitted.) 170 Mont. at 439-440, 555 P.2d at 740. This Court found no factors present in that case which would move the discretion of the later judge to reconsider the prior determinations of the earlier judges. This Court followed the “law of the case” principle in Mereness v. Frito-Lay (Mont. 1985), [216 Mont. 154,] 700 P.2d 182, 184, 42 St.Rep. 716, 718, and could find “no discernible reason” why the third judge had discretion to reconsider decisions by two prior judges. Many decisions in other jurisdictions express a similar general rule that one district judge may overrule or review a decision of another district judge in the same case only where there are “exceptional circumstances,” U.S. v. Wheeler (3rd Cir. 1958), 256 F.2d 745, cert. den. 358 U.S. 878, 79 S.Ct. 111, 3 L.Ed.2d 103, reh. den. 358 U.S. 913, 79 S.Ct. 229, 3 L.Ed.2d 234, or “most cogent reasons.” Carnegie National Bank v. City of Wolf Point (9th Cir. 1940), 110 F.2d 569. In Wheeler, the reviewing court noted the first judge was available since he had neither died nor resigned, there was no “pressing urgency” for immediate review, and the new evidence presented was not substantially different than that already in the record. For these reasons, that court refused to uphold the amended order of the second judge. 256 F.2d at 747. In Carnegie, 110 F.2d 569, the second judge dismissed a suit for failure to prosecute a claim six years after the first judge “lodged” findings and conclusions favorable to the plaintiff. The reviewing court held that the second judge abused his discretion by overruling the first judge’s decision and noted the first judge was still available. 110 F.2d at 573.

The case at bar presents no exceptional circumstances or cogent reasons warranting the second judge’s action in amending the original decision. The first judge could have been called back to sit on the motion to amend, as he was and still is available to consider the motion. Neither party indicated any pressing urgency. The new evidence presented by the mother on her motions to amend or for a new trial only gave additional information on the general costs of raising children. This evidence did not differ substantially from what had already been presented and, in fact, could have been available for use during the hearing before the first judge. We hold that the second judge erred when he amended the original findings of fact, conclusions of law and order.

When asking that the original order should be reinstated, the father argues, in the second issue, that the original findings of fact were supported by substantial, credible evidence. The mother argues that the findings of attorney’s fees and on the needs of the child lack support in the evidence.

On the question of attorney’s fees, the first judge found that the parties agreed the father had no opportunity to avoid payment of attorney’s fees, that the mother made no demand for a specific dollar amount, that the mother’s attorney filed for modification of child support without prior notice to the father, and that neither party’s motions were malicious, vexatious or for the purpose of harassment within the meaning of Section 40-4-219, MCA. The evidence least supportive of these findings is found in the mother’s testimony. She admitted that the father had no opportunity to negotiate on the amount of payments prior to her motion for modification and that when she asked him to discuss higher payments with his current spouse he voluntarily increased the amount by $25 per month. In addition, she acknowledged that he discussed changing the custody arrangement several times prior to the current action. Even the mother’s testimony supported the findings on attorney’s fees in the original order. We hold that the original findings on attorney’s fees were supported by substantial, credible evidence.

The original decision contains a number of findings which bear on the amount of child support. To apply the formula from In re Marriage of Carlson (Mont. 1984), [214 Mont. 209,] 693 P.2d 496, 41 St. Rep. 2419, three figures are needed; the custodial parent’s net earning capacity, the visitation parent’s net earning capacity and the needs of the child. The findings on the needs of the child in the original order includes the following: (1) $50 per month was unconscionably low child support in 1974, (2) the purchasing power of the dollar in 1985 is about 60% of what it was in 1974, (3) the cost of raising a 12 year old boy is greater than the cost of raising a preschool child, and (4) the mother’s living expenses are $1,160 per month.

The District Court then determined the child’s needs were $200 per month with the resulting amount of support being $105 per month from the father and $95 per month from the mother using the Carlson formula. The origin of the $200 per month figure is not clear from the record. If the mother’s living expenses are divided three ways between her and the two children, one share is about $386 per month. No other evidence was presented on the cost of raising the child. Using that figure in the Carlson formula, the resulting amount of child support to be paid by the father is about $200 per month when considering the other findings, the $105 has the purchasing power of about $63 in 1984. This is not much higher than the amount found “unconscionably low”, set in 1974. In addition, the District Court had found the cost of raising a 12 year old greater than that of raising a pre-school child. Because the $200 figure appears inconsistent with other relevant findings supported in the record and its origin is not clear from the record on appeal, this Court remands the original District Court order to the first judge for clarification on this point.

The amended findings of fact, conclusions of law and order are set aside and the original findings of fact, conclusions of law and order are remanded for clarification.

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