text:
    SWAN CORPORATION, Petitioner and Appellant, v. MONTANA DEPARTMENT OF REVENUE, LIQUOR DIVISION, Defendant and Respondent.
    No. 87-434.
    Submitted on Briefs April 7, 1988.
    Decided June 7, 1988.
    755 P.2d 1388.

      R. Lewis Brown, Jr., Butte, for petitioner and appellant.
    Paul Van Tricht, Dept, of Revenue, Tax Counsel, Helena, for defendant and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Petitioner Swan Corporation (Swan) appeals from the order of the District Court of the Second Judicial District, Silver Bow County, dismissing its Petition for Judicial Review of the Order of the Montana Department of Revenue, Liquor Division (Department), which imposed a fine of $1,500 against Swan for violation of Section 16-6-301, MCA. We affirm.

Swan presents four issues for review by this Court:

1. Whether the court below erred in affirming the Department’s imposition of a fine against Swan.

2. Whether the court below erred in its interpretation of Sections 16-1-106 and 16-6-301(1), MCA.

3. Whether the court below erred in dismissing Swan’s appeal from adverse action by the Department.

4. Whether the Department erred in finding that Swan violated the provisions of Section 16-6-301(1), MCA.

The facts in this appeal are not in dispute. Paul M. “Sandy” Keith owns Swan, which in turn holds a Montana All-alcoholic Beverage license for the Red Rooster supper club in Butte. In the summer of 1984, Keith became involved in a series of transactions concerning 900 cases of Sotto Voce wine mistakenly consigned to the Port of Butte by Clan Importers of Portland, Oregon, and on which no Montana taxes had been paid.

Clan importers authorized the Port of Butte to dispose of the wine by giving it to Craig Britton, the manager of Montana Livestock Auction, for use with animal fodder. Once in possession of the wine, however, Britton determined that it was unsuitable for use with fodder and gave some of it to Keith. Keith sold 200 cases of the wine to the Copper King Inn of Butte for $2,000.

In March of 1985, the Department was informed that the Copper King Inn was in possession of untaxed wine. The Department met with officers of the Copper King Inn, and confiscated 163 remaining cases of Sotto Voce. The untaxed wine presented a violation of the Montana Alcoholic Beverage Code, and the ensuing investigation resulted in Keith’s conviction on a plea of guilty to the charge of “unlawful sale or transfer of alcoholic beverages” in violation of Section 16-6-301 (4) (b), MCA, for which he was fined $250. The Department’s investigator also discovered six bottles of the untaxed Sotto Voce in the wine cooler at the Red Rooster. The Department charged Swan, as the holder of the Red Rooster’s liquor license, with violating the requirement in Section 16-6-301(1), MCA, that liquor be sold in compliance with the Alcoholic Beverage Code.

The Department held a hearing pursuant to Section 16-4-406, MCA, at which the Hearing Examiner concluded that Swan was guilty and proposed a civil penalty of $1,500. The Department issued its Final Order in the case on August 7, 1987, approving the Hearing Examiner’s report and assessing the penalty. Swan then petitioned for judicial review in the District Court of the Second Judicial District. The court’s dismissal of that petition is the subject of this appeal.

While Swan’s brief presents four issues on appeal, the arguments presented center on the interpretation of the word “liquor” in the Department’s Conclusion of Law No. 13, which was affirmed by the District Court. Swan argues it was not in violation of Section 16-6-301, MCA, because table wine does not come within the code’s definition of liquor found in Section 16-1-106, MCA. Our inquiry thus becomes whether the court erred in affirming that “liquor,” as the term as is used in Section 16-6-301(1), MCA, includes table wine. The answer to this question is largely dispositive of the issues presented by Swan.

The District Court’s review of the Department’s Final Order was prescribed by Section 2-4-704, MCA:

“(1) The review shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the agency not shown in the record, proof thereof may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.
“(2) The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced . .

The court used as its guide City of Billings v. Billings Fire Fighters Local Number 521 (1982), 200 Mont. 421, 651 P.2d 627, in which this Court said judicial review of an agency decision under Section 2-4-704, MCA, is governed by two basic standards. Findings of fact will be upheld unless they are “clearly erroneous,” and conclusions of law will be upheld unless they are an “abuse of discretion.” An abuse of discretion results if an agency’s interpretation of a statute is clearly contrary to the legislative intent behind that statute. City of Billings, 651 P.2d at 632; see Montana Tavern Ass’n v. State (Mont. 1986), [224 Mont. 258,] 729 P.2d 1310, 43 St.Rep. 2180; Terry v. Board of Regents of Higher Education (Mont. 1986), [220 Mont. 214,] 714 P.2d 151, 43 St.Rep. 304. These standards will also apply to our review of the District Court.

When the events outlined above took place in 1984, Section 16-6-301(1), MCA, read as follows:

“Except as provided by this code, no person shall, within the state, by himself, his clerk, servant, or agent, expose or keep for sale or, directly or indirectly or upon any pretense or upon any device, sell or offer to sell or, in consideration of the purchase or transfer of any property or for any other consideration or at the time of transfer of any property, give to any other person any liquor.”

The code defined “liquor” in Section 16-1-106(11), MCA, as “an alcoholic beverage except beer and table wine.”

Swan argues to this Court that the definition of liquor in Section 16-1-106(11), MCA, is “plain, direct, certain and unambiguous.” Swan then marshals case authority holding that statutory construction by a court in the face of a clear and unambiguous statute is error. However, the District Court did not construe Section 16-1-106 or Section 16-6-301, MCA. The court took pains to state its inability to do so when proceeding under Section 2-4-704, MCA, and confined its review to determining whether the Department had abused its discretion in interpreting the statutes.

The statutory interpretation in Conclusion of Law No. 13 complained of by Swan was addressed to a change in the Alcoholic Beverage Code brought about by Initiative 81, which was passed in November, 1978. The intent of Initiative 81 was to loosen controls on the sale of table wine, and treat it in a manner similar to beer sales. One of the results of the initiative was the amendment of the code definition of liquor. Prior to 1978, the code definition of liquor had included table wine. The Department’s conclusion of law stated,

“It was not the intent of this amendment, however, to completely decontrol the retail trade in table wine. Section 1 of Initiative 81 explicitly states that ‘[t]he public policy of the State of Montana is to . . . regulate and control the acquisition, importation and distribution of [table wines].’ It is not reasonable to infer that the people, by excluding table wines from the definition of ‘liquor’ now codified at Section 16-6-106(11), MCA, intended to remove the table wines from the requirement in Section 16-6-301, MCA, that liquor be sold only in compliance with the code. Amendatory legislation must be read with its intended object in mind and should not be construed to produce unreasonable results. State ex rel. Sol v. Bakker, 199 Mont. 385, 391-92, 649 P.2d 456, 459 (1982); State Bar v. Krivec, 632 P.2d 707, 710 (1981). The argument offered by Swan produces a result which is patently unreasonable, and it is therefore rejected.”

As the District Court noted, when the Department looked at the Alcoholic Beverage Code, it was faced with an extensive set of statutes, some of which had been amended piecemeal as the result of Initiative 81. In our view, it was therefore incumbent upon the Department to examine the effect this amendment had on Section 16-6-301, MCA, in order to determine whether Swan had violated the provision. This Court has held that when construing a statute, the intent of the legislature is controlling, and such intent cannot be gained from the wording of one particular section, but only from consideration of the whole. State v. Meader (1979), 184 Mont. 32, 36-37, 601 P.2d 386, 388-89. The revised definition of liquor had to be given a reasonable construction that would enable it to be harmonized with the entire statute. McClanathan v. Smith (1980), 186 Mont. 56, 60, 606 P.2d 507, 510; see In re Adoption of K.L.J.K. (Mont. 1986), [224 Mont. 418,] 730 P.2d 1135, 43 St.Rep. 2297.

The District Court, in an effort to ensure that the Department did not abuse its discretion through a statutory interpretation at odds with legislative intent, reviewed Conclusion of Law No. 13 in light of the Department’s findings of fact, the civil nature of this case and the overall effect the definition of liquor had on the Alcoholic Beverage Code.

As to the findings of fact, Section 2-4-704, MCA, prevented the District Court from substituting its own judgment for that of the Department. The findings were to be upheld unless clearly erroneous. City of Billings, 651 P.2d at 632. The District Court did not reach its judgment solely on the basis of its review of the factual findings, but used the findings as background for evaluating the contested conclusion of law. We find no abuse of discretion in the District Court’s review of the findings of fact.

The District Court next reviewed the civil nature of the proceedings, which determined the standard for construing Sections 16-1-106 and 16-6-301, MCA. The fine against Swan was imposed under Section 16-4-406, MCA, which states that if the Department has reasonable cause to believe a licensee, such as Swan, “has violated any of the provisions of this code or any rules of the department, it may, in its discretion . . . impose a civil penalty not to exceed $1,500 . . .” Section 16-4-406, MCA. The proceedings thus being civil, the rules of statutory construction found in Sections 1-2-102 and 1-2-103, MCA, required the Department to construe Sections 16-1-106 and 16-6-301, MCA, liberally in order to “eifect their objects and promote justice.” Section 1-2-103, MCA. We find no abuse of discretion in the District Court’s review of the civil nature of the proceedings.

Finally, the District Court examined the Alcoholic Beverage Code in its entirety to see if in fact Swan’s reading of Section 16-1-106(11), MCA, would produce the unreasonable result asserted by the Department. The first example cited by the court is telling. The version of Section 16-3-101, MCA, in eifect in 1984 stated,

“No brewer, distiller, or manufacturer of liquor shall, within the state, by himself, his clerk, servant, or agent, give to any person any liquor except as may be permitted by and in accordance with the rules made under this code.”

As the court pointed out, no mention was made of wine, but to assume that the legislature had intended that wine be excluded from the definition of liquor so any person could dispense wine in an unlawful manner outside the code would be an unreasonable result. In light of our holding in McClanathan, we find no abuse of discretion in the District Court’s overall review of the Alcoholic Beverage Code.

We therefore find no abuse of discretion on the part of the District Court in reviewing the Department’s construction of Sections 16-1-106 and 16-6-301(1), MCA, and conclude that the definition of liquor as the term is used in Section 16-6-301(1), MCA, was intended to include table wine. In light of this conclusion, we will now address the issues posed by Swan on appeal.

ISSUE NUMBER ONE

Swan asserts that the District Court erred in affirming the Department’s imposition of the fine. As stated above, Section 16-4-406, MCA, allows the Department to impose civil penalties against licensees found to be in violation of the code. According to the Department’s findings of fact, Swan was found in possession for sale of wine upon which no Montana tax had been paid. Because the wine came within the definition of “liquor” discussed above, these facts established that Swan was in violation of Section 16-6-301(1), MCA. The Department, in its discretion, imposed a penalty pursuant to Section 16-4-406, MCA. The District Court was constrained by Section 2-4-704, MCA, to affirm the penalty unless its review showed an abuse of discretion by the Department. We find no abuse of discretion in the District Court’s affirmance of the penalty.

ISSUE NUMBER TWO

Swan next asserts that the District Court erred in its interpretation of Sections 16-1-106(11) and 16-6-301(1), MCA. This issue has been addressed in our discussion of the definition of liquor. The court merely reviewed the Department’s interpretation, and we find no error in its review.

ISSUE NUMBER THREE

Swan also assigns error to the District Court’s dismissal of Swan’s appeal from the Final Order of the Department. As discussed above, the Department found Swan in violation of Section 16-6-301, MCA, and imposed a fine pursuant to Section 16-4-406, MCA. We have found no abuse of discretion in the District Court’s action in affirming the Department’s conclusion that Swan violated Section 16-6-301, MCA, and its imposition of the fine. We therefore conclude the District Court likewise did not abuse its discretion in dismissing Swan’s appeal from these .actions.

ISSUE NUMBER FOUR

Finally, Swan asserts that the Department erred in finding that Swan violated Section 16-6-301(1), MCA. Our function, however, is to review the judgment of the District Court, not the Final Order of the Department. Section 2-4-711, MCA, M.R.App.P. 2. We have found no abuse of discretion in the court’s affirmance of the Department’s order.

We affirm the judgment of the District Court.

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


source: Caselaw Access Project

author: MR. JUSTICE HUNT

license: Public Domain

text:
    L.C. WEIS, Plaintiff and Appellant, v. The DIVISION OF WORKERS’ COMPENSATION OF THE DEPARTMENT OF LABOR AND INDUSTRY, and agency of the State of Montana, Defendants and Respondents.
    No. 87-451.
    Submitted May 10, 1988.
    Decided June 7, 1988.
    755 P.2d 1385.

      Burgess, Joyce & Whelan, Frank Burgess and Thomas F. Joyce, argued, Butte, for plaintiff and appellant.
    Steven J. Shapiro argued, Helena, for defendants and respondents.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Weis, a chiropractic doctor licensed in the state of Montana, appeals the declaratory judgment entered by the Second Judicial District Court, Silver Bow County, finding that the Division of Workers’ Compensation properly exercised its delegated authority by enacting administrative Rule 24.29.806, A.R.M. (1986). This rule restricts medical evaluation of a physical impairment to those with a doctor of medicine (M.D.) degree.

We affirm.

The issues raised and argued on appeal are:

1. Whether the Montana state legislature intended to restrict the making of an “impairment rating” to licensed medical physicians (M.D.’s) by enacting Section 37-71-122, MCA (1985)?

2. Whether the District Court erred in finding that the Division of Workers’ Compensation properly exercised its rulemaking authority when promulgating administrative Rule 24.29.806, A.R.M., which restricts medical evaluations of a physical impairment to those who hold a doctor of medicine (M.D.) degree and are licensed as a physician to practice medicine in the state of Montana?

In 1972, the Division of Workers’ Compensation enacted what is now Rule 24.29.806, A.R.M. This rule provides that “[m]edical evaluations to determine physical impairment shall only be done by qualified medical physicians,” and that the Division must be advised of “all evaluations of impairment by physicians.” An impairment rating is a medical determination of a person’s physical limitations caused by an injury and which helps to establish a person’s benefits under the Workers’ Compensation program. As initially enacted, the terms “medical doctors” and “doctors” were used instead of physicians.

In 1981, the Montana state legislature enacted Sections 39-71-121 and -122, MCA, which define disability and impairment as they are used in determining whether a person has suffered a compensable, work related injury. The essential difference between the two definitions for the purpose of this action is that “[a]n impairment rating is purely a medical determination” whereas “[disability is not a purely medical condition.” The 1987 Montana state legislature repealed these two definitional statutes and in their place enacted Sections 39-71-701, -702 and -703, MCA, which continues to provide that the determination of the three types of disability — temporary total, permanent total and permanent partial — must be supported by a preponderance of “medical evidence.”

From December, 1972, when the rule first went into effect, until December 14,1982, when the Workers’ Compensation Court decided Rookhuizen v. Pierce Packing Co., Docket No. 382-118, chiropractors rated impairments of injured workmen. In Rookhuizen, the Workers’ Compensation Court held that “[a]n impairment rating is a medical determination and only a person licensed to practice medicine can make a medical determination” (emphasis in original). Docket No. 382-118, at 6. The court thus held that since Section 37-12-102, MCA, declares that a chiropractor does not practice medicine and Section 37-12-104(1], MCA, forbids a chiropractor from practicing medicine, a chiropractor cannot render an impairment rating. Docket No. 382-118, at 9. As a result of the Rookhuizen decision, the Division of Workers’ Compensation and the Workers’ Compensation Court refuses to accept impairment ratings from chiropractors. Weis, a chiropractor licensed in the state of Montana, appealed this decision in District Court in June, 1986.

The dispositive issue in this case is whether the Montana state legislature intended to restrict the making of an “impairment rating” to licensed medical physicians (M.D.’s) by enacting Section 39-71-122, MCA? Upon review of the statutes and legislative history, we hold that the legislature did intend for only licensed medical physicians to render the impairment ratings necessary for an injured worker to recover under the Workers’ Compensation program.

In 1986, when this action was filed, the statute in effect was Section 39-71-121, MCA, which stated “[a]n impairment rating is purely a medical determination.” The legislature repealed this statute in 1987. The applicable statutes in effect now are Sections 39-71-701, -702 and -703, MCA, which require that disabilities be supported by a “preponderance of medical evidence.” Despite the changes in the statutes, the dispositive issue of whether the legislature intended to restrict the making of impairment ratings to licensed medical physicians by the use of the word “medical” is still before this Court.

When interpreting the word “medical” in the above statutes, this Court must adhere to the legislative intent to determine whether “medical” includes only licensed medical physicians or, as Weis argues, whether it includes everyone trained in treating body or mental disorders, which would necessarily include, for example, chiropractors, osteopaths and optometrists. See Section 1-2-102, MCA; Montana Tavern Ass’n. v. State ex rel. Dept. of Revenue (Mont. 1986), [224 Mont. 258,] 729 P.2d 1310, 1316, 43 St.Rep. 2180, 2185; Missoula County v. American Asphalt, Inc. (Mont. 1985), [216 Mont. 423,] 701 P.2d 990, 992, 42 St.Rep. 920, 922.

The first step in determining the legislative intent is to examine the plain meaning of the words used in the statute. Montana Tavern Ass’n., 729 P.2d at 1316, 43 St.Rep. at 2185; Missoula County, 701 P.2d at 992, 42 St.Rep. at 922; State ex rel. Sol v. Bakker (1982), 199 Mont. 385, 390, 649 P.2d 456, 459. Webster’s Dictionary defines medical as “of, relating to, or concerned with physicians or the practice of medicine.” Webster’s Ninth New Collegiate Dictionary 737 (1984). Upon reviewing Section 37-12-104, MCA, which addresses the rights and limitations governing the practice of chiropractic, the definition of “medical” appears clearer. This statute specifically states that chiropractors “shall not in any way imply that they are regular physicians or surgeons. They shall not . . . practice medicine or surgery or osteopathy . . . .” Section 37-12-104(1), MCA. The plain meaning of the word as defined by Webster in conjunction with Section 37-12-104(1) makes it clear that legislators intended to allow only licensed medical physicians to render impairment ratings.

The legislative history further supports this conclusion. In 1981, Senator Bill Norman introduced Senate Bill 128 and stressed that “[i]t is necessary to understand the concept of impairment. This is a medical determination . . . .” House Labor and Employment Relations Committee Minutes, at 1 (February 17, 1981). In 1987, Senate Bill 315 was introduced primarily to help “to insure that the workers’ benefits are provided swiftly and surely . . .” Senate Business and Labor Committee, at 1 (March 9, 1987). During the March 9 meeting of the Senate’s Business and Labor Committee, a representative of the Montana Chiropractor Association supported reformation of Montana’s Workers’ Compensation laws but suggested an amendment to the bill to allow other health care professionals, not just medical doctors, to render impairment ratings. The Association’s representative recognized that the bill as written allowed only medical doctors to render impairment ratings and therefore suggested an amendment that would, for example, replace “physician” with “primary health care provider” and define “medical evidence” as “the testimony of a physician or other licensed practitioner of one of the healing arts.” Senate Business and Labor Committee, Exhibit 5 (March 9, 1987).

The legislators had these proposed amendments before them but chose not to incorporate the suggested changes of the Montana Chiropractor Association in the enacted version of Senate Bill 315. The legislative history of this bill thus further supports our conclusions that the word “medical” in this instance refers only to licensed medical physicians. The interpretation of ‘medical’ as used in this statute does not, as Weis argues, prevent injured claimants from seeking treatment from a chiropractor, osteopath, or other licensed practitioner engaged in the healing arts.

The second issue raised and argued on appeal is whether the District Court erred in finding that the Division of Workers’ Compensation properly exercised its rulemaking authority when promulgating administrative Rule 24.29.806, A.R.M. (1986). This rule restricts medical evaluations of a physical impairment to those who hold a doctor of medicine (M.D.) degree and are licensed as a physician to practice medicine in the state of Montana. When interpreting a statute, this Court will give deference to the agency charged with its interpretation, unless the interpretation produces an absurd result. Montana Tavern Ass’n., 729 P.2d at 1316; State ex rel. Dept. of Highways v. Midland Materials Co. (1983), 204 Mont. 65, 70, 662 P.2d 1322, 1325. As evident from the foregoing discussion, the Division of Workers’ Compensation interpretation of Rule 24.29.806, A.R.M., is not absurd. After consideration of the legislative intent and the plain meaning of. the word “medical”, we hold that the District Court did not err in finding that the Division of Workers’ Compensation properly enacted administrative Rule 24.29.806.

Affirmed.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JULIUS A. BLALOCK, Defendant and Appellant.
    No. 87-458.
    Submitted May 5, 1988.
    Decided June 7, 1988.
    756 P.2d 454.

      John C. Stanley, Jr., Great Falls, for defendant and appellant.
    Mike Greely, Atty. Gen., George Schunk, Asst. Atty. Gen., Helena, Sarah Arnott, Co. Atty., Stanford, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from the District Court, Tenth Judicial District, County of Judith Basin. The matter was initially heard in Justice Court and was appealed to District Court for a trial de novo. The District Court fined the appellant $210.00 for violating Section 45-6-203, MCA, criminal trespass. We affirm.

The appellant’s issues are as follows:

1. Whether the District Court’s “finding” that the intended criminal act is purposely and knowingly doing the act that is done, not the purposeful and knowledgeable intention to commit a crime, led to an incorrect conclusion that the appellant had “purposely and knowingly” entered the complaining witness’s land?

2. Whether the complaining witness properly posted his property as directed by Section 45-6-201, MCA?

3. Whether Section 45-6-201, MCA, is unconstitutionally vague and violates the due process clause of the Fourteenth Amendment to the United States Constitution and Article II, Section 17, of the Montana Constitution?

On March 11, 1987, the appellant, Julius Blalock, was traveling on a public highway running adjacent to Cyril Collarchik’s land. At one point, he left the highway onto a dirt road that ran into Collarchik’s property. The purpose of this excursion was to investigate some structures he thought looked like beehives. At the point the road meets the highway is a gate which had been left open. On the post, right of this opening was a rectangular sign measuring 12 x 5 inches and painted fluorescent orange. No written messages appeared on this sign. All entrances used by vehicles were similarly marked. The statute relevant to posted notice against trespassing is Section 45-6-201(2), MCA:

“(2) To be effective under this section, the notice provided for in subsection (1) must satisfy the following requirements:
“(a) notice must be placed on a post, structure, or natural object by marking it with written notice or with not less than 50 square inches of fluorescent orange paint, except that when metal fence-posts are used, the entire post must be painted; and
“(b) the notice described in subsection (2) (a) must be placed at each outer gate and normal point of access to the property, including both sides of a water body crossing the property wherever the water body intersects an outer boundary line.”

Both parties agree that Blalock had no knowledge that the right post marking may have constituted legal notice of no trespassing. He satisfied his curiosity about the beehives and began driving out the way he came in when he was stopped by Collarchik who called the sheriff. When the sheriffs deputy arrived, Blalock was cited for criminal trespass.

Initially, we will dispose of appellant’s constitutional claim. Because he did not raise this claim at trial and it does not fit into any of the statutory and common law exceptions, Blalock is barred from challenging the constitutionality of Section 45-6-201, MCA. State v. Probert (Mont. 1986), [221 Mont. 476,] 719 P.2d 783, 785, 43 St.Rep. 988, 990.

Appellant takes issue with the District Court’s “finding” that

“The intended criminal act is purposely and knowingly doing the act that is done, not the purposeful and knowledgeable intention to commit a crime, and the Defendant purposely and knowingly entered upon the Complainant’s property.”

Blalock contends that this finding essentially prevents the use of any defense to the required element of “knowingly.” Much of Blalock’s argument focuses on his assertion that he was unaware that the orange sign meant no trespassing. He claims that this is a mistake of fact that provides a defense that prevents him from being found to have the requisite mental intent to knowingly enter the land unlawfully. This argument has no merit.

It is well recognized in Montana that one need not form the intent to commit a specific crime or to intend the result that occurred to be found guilty of knowingly committing a crime. See State v. Raty (Mont. 1984), [214 Mont. 114,] 692 P.2d 17, 19, 41 St.Rep. 2354, 2356-57; State v. Sigler (Mont. 1984), [210 Mont. 248,] 688 P.2d 749, 5, 41 St.Rep. 1039, 1046; State v. Weaver (1981), 195 Mont. 481, 494, 637 P.2d 23, 30.

We hold that the District Court’s “finding” correctly stated Montana law.

In response to Blalock’s assertion that he is denied a defense to the element of “knowingly” we wish to state that ignorance of the law has never been a defense in Montana. Section 45-2-103(5), MCA; State ex rel. Rowe v. District Court (1911), 44 Mont. 318, 324, 119 P.1103. Since no argument has been made that the sign at the relevant entryway was not in accordance with the posting statute, we will assume for purposes of this issue that Blalock had legal notice that the land he entered was off-limits to trespassers. We affirm the District Court’s finding that Blalock knowingly entered Collarchik’s land.

Next Blalock asserts that Collarchik’s failure to post notice at points where a creek traversed his land negates the effectiveness of his efforts to post at other points of his property. Because there was no substantial compliance, Blalock argues, the notice is void.

We decline to discuss at this point the intricacies of Section 45-6-201’s substantial compliance clause. We do not think, however, that the legislature intended to deprive a property owner of his right to allow or refuse entry to whomever he wants. Since the gate Blalock entered was adorned with the proper orange markings, he was denied the right to enter the land. He entered knowingly and was consequently arrested. Under the specified circumstances of this case, we affirm the decision of the District Court.

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


author: MR. CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RONALD WILLIAM McKIMMIE, Defendant and Appellant.
    No. 87-520.
    Submitted on Briefs April 28, 1988.
    Decided June 7, 1988.
    756 P.2d 1135.

      John Keith, Great Falls, for defendant and appellant.
    Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Patrick L. Paul, Co. Atty., Steve Hagerman, Deputy Co. Atty., Great Falls, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Defendant McKimmie appeals his September 23, 1987, bench convictions in the Eighth Judicial District Court, Cascade County, for deliberate homicide, burglary, theft and evidence tampering. Mc-Kimmie was sentenced to one hundred years in the Montana State Prison for deliberate homicide, ten years for burglary, ten years for tampering with physical evidence, and ten years for use of a dangerous weapon, with the sentences to run consecutively. McKimmie was also sentenced to six months in the Cascade County jail for misdemeanor theft, to run concurrently. McKimmie was designated a nondangerous offender. We affirm the convictions.

McKimmie raises two issues for our review:

1. Does sufficient evidence support McKimmie’s conviction of deliberate homicide?

2. Does sufficient evidence support McKimmie’s conviction of burglary, theft and tampering with physical evidence?

At 2:07 a.m. on June 6, 1987, the police dispatcher in Great Falls received a call from a woman asking for help. Upon questioning, she stated that her husband had shot her with a rifle. She also stated that her husband had taken the rifle and fled in a 1976 Ford Pinto.

The dispatcher stayed on the line for several minutes until a police officer arrived at the victim’s apartment. The officer found the victim, Valarie McKimmie, lying on the couch with a telephone in her hand. She had a two-inch hole in her chest. The officer hung up the phone and immediately tried to stop the bleeding by applying direct pressure to the wound. A second officer soon arrived and assisted until the ambulance arrived. The second officer asked Valarie who had shot her. She replied: “My husband.” The officer then asked for her husband’s name, and she replied: “Ronald.”

Valarie was transported to Deaconess Medical Center in Great Falls. The police were unable to get any further statements from her. Valarie died as a result of the gunshot wound on June 11, 1987.

McKimmie was subsequently charged with deliberate homicide, burglary, theft and evidence tampering. Trial was held on September 22, 1987. Prior to presenting his case-in-chief, McKimmie stipulated to the following facts: McKimmie shot Valarie with a rifle belonging to Eugene Ameline. Following the shooting, McKimmie left the rifle alongside Interstate 15 south of Great Falls. McKimmie then drove to Salt Lake City, where he was arrested for DUI by a Utah Highway Patrol officer in the afternoon of June 6, 1987. Mc-Kimmie told the arresting officer that he had shot his wife in Montana.

Issue 1. Deliberate Homicide.

The District Court convicted McKimmie of deliberate homicide as defined in Section 45-5-102(1)(a), MCA (1985): “Criminal homicide constitutes deliberate homicide if: (a) it is committed purposely or knowingly.” At sentencing, the District Court told McKimmie: “[Y]ou laid in wait for her until she came home, and you deliberately shot her. She was still holding her purse, and one of the shells penetrated the metal clasp on the purse and went into her chest, which indicates to me that this is deliberate homicide of the worst type.”

However, McKimmie contends that the shooting was accidental and that the State did not prove he acted purposely or knowingly in causing Valarie’s death.

Our standard of review on sufficiency of evidence is whether the evidence, when viewed in a light most favorable to the prosecution, would allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Kutnyak (Mont. 1984), [211 Mont. 155,] 685 P.2d 901, 910, 41 St.Rep. 1277, 1289. If events are capable of different interpretations, the trier of fact shall determine which is the most reasonable. State v. Matson (Mont. 1987), [227 Mont. 36,] 736 P.2d 971, 973, 44 St.Rep. 874, 875, citing State v. Atlas (Mont. 1986), [224 Mont. 92,] 728 P.2d 421, 423, 43 St.Rep. 2042, 2044.

In the instant case, the State was required to show that McKimmie purposely or knowingly caused the death of Valarie. “Knowingly” is defined in Section 45-2-101(33), MCA:

“A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware of his conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when he is aware that it is highly probable that such result will be caused by his conduct. [Emphasis added.]

This “knowing” element was manifest in McKimmie’s actions. McKimmie admitted that he had broken into Eugene Ameline’s apartment earlier in the evening. McKimmie removed the weapon used to kill Valarie, which was a 7.65 Mauser rifle, and two sizes of ammunition from the apartment. He left everything else in place.

McKimmie testified that he then tried to commit suicide with the rifle around 10:30 p.m. on June 5. As he was positioning himself on the couch, he claimed that the rifle slipped off the coffee table and discharged into the refrigerator. But the District Court stated: “You said that you attempted to commit suicide, but it’s the Court’s belief that you fired that shot that hit the refrigerator, about a foot from the floor, just to see if it worked, see if you had the right ammunition in the gun.”

McKimmie testified that he reloaded the rifle around 12:30 a.m. According to McKimmie, when Valarie came home at about 1:30 a.m., McKimmie talked to her about his attempted suicide. While he was holding the rifle across his lap, Valarie sat on an adjacent couch. McKimmie stated that he fell back, and the gun discharged. McKimmie testified: “I looked at her and thought, my God, she’s dead.” A firearms expert testified that the rifle was operating normally and that Valarie was shot from a distance of less than four feet.

We find that McKimmie’s actions prior to, during and after the shooting demonstrate an awareness of his conduct and its probable results. However, McKimmie next asserts that he is an alcoholic and was not aware of what he was doing because he drank alcohol from noon on June 5, 1987, until his arrest on June 6, 1987, for DUI. We note Section 45-2-203, MCA (1985), which states:

“A person who is in an intoxicated or drugged condition is criminally responsible for his conduct unless such condition is involuntarily produced and deprives him of his capacity to appreciate the criminality of his conduct . . . [Emphasis added.]”

By his own admission on the witness stand, McKimmie had voluntarily consumed alcohol since noon. Where sufficient credible evidence supports the findings, the question of the relationship of voluntary intoxication to specific intent will not be reconsidered on appeal. State v. Hardy (1980), 185 Mont. 130, 135, 604 P.2d 792, 795-796. In light of the supporting evidence, we will not make an independent determination of the effect of voluntary intoxication on the defendant’s state of mind. State v. Sage (Mont. 1986), [221 Mont. 192,] 717 P.2d 1096, 1101, 43 St.Rep. 738, 744.

Finally, McKimmie admits that his flight after the shooting might infer knowledge or purpose, but he asserts that mere flight does not establish the requisite mental state. We note that, standing alone, such flight does not establish the requisite mental state. However, flight by a defendant may be considered by the trier of fact as a circumstance tending to prove consciousness of guilt. State v. Charlo (Mont. 1987), [226 Mont. 213,] 735 P.2d 278, 282, 44 St.Rep. 597, 603. As trier of fact, the District Court determined the evidentiary weight and significance of McKimmie’s flight from the crime scene. State v. Twoteeth (Mont. 1985), [219 Mont. 101,] 711 P.2d 789, 794, 42 St.Rep. 1873, 1879.

McKimmie fled the crime scene, he disposed of the Mauser rifle, and he subsequently admitted shooting Valarie. The record contains ample evidence that McKimmie knowingly caused the death of Valarie. If the act which causes the death is done purposely or knowingly, deliberate homicide is committed even if death is not the intended result. State v. Sigler (Mont. 1984), [210 Mont. 248,] 688 P.2d 749, 758, 41 St.Rep. 1039, 1047. McKimmie’s claim is without merit. We hold that the evidence clearly supports McKimmie’s conviction for deliberate homicide.

Issue 2. Burglary, theft and tampering

a. Burglary

McKimmie was convicted of burglary as defined in Section 45-6-204(1), MCA:

“A person commits the offense of burglary if he knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein. [Emphasis added.]”

McKimmie contends that he entered Ameline’s apartment in his capacity as apartment manager. Ameline lived two apartments away from McKimmie. McKimmie asserts that he was in the process of evicting Ameline for nonpayment of rent. McKimmie argues that he merely inventoried Ameline’s property for storage and removed Ameline’s rifle as a “protective measure.” He concludes that no evidence shows a purpose to commit an offense.

We disagree. McKimmie’s “apartment manager” defense to burglary is inadequate. McKimmie acted far beyond his statutory authority as agent of the landlord. First, his method of entry was destructive. The police investigating officer noted that the main window on Ameline’s apartment door had been broken out and the wire mesh behind the window had been damaged. Second, Mc-Kimmie entered Ameline’s apartment at night. Third, McKimmie entered without the tenant’s consent. Fourth, he entered without notice. McKimmie plainly violated a landlord’s right of access under Section 70-24-312(3), MCA: “. . . the landlord shall give the tenant at least 24 hours’ notice of his intent to enter and may enter only at reasonable times.” (Emphasis added.)

McKimmie’s unlawful entry was also done knowingly. Mc-Kimmie testified in detail about where he had been and what he had done in the hours prior to the time he entered Ameline’s apartment. McKimmie precisely described his entry: “I had keys for all of the units except his. So I had to use a small hammer on the window and I was careful to try to keep the damage as minimal as possible.” McKimmie then recalled in detail the events which occurred after his entry into the apartment. McKimmie’s testimony falls squarely within the definition of “knowingly” in Section 45-2-101(33), MCA.

The third element of burglary — “purpose to commit an offense” — is discussed below, and shows that theft was the object and purpose of McKimmie’s entry into the apartment. We hold that McKimmie’s conviction of burglary is amply supported by the theft, the physical evidence of forced entry and McKimmie’s admissions.

b. Theft

Theft is defined in Section 45-6-301(1), MCA:

“A person commits the offense of theft when he purposely or knowingly obtains or exerts unauthorized control over property of the owner and: (1) has the purpose of depriving the owner of the property. [Emphasis added.]”

The State proved each element of theft. First, McKimmie admitted that he removed the rifle and ammunition from Ameline’s apartment. He did so without Ameline’s knowledge or consent. Mc-Kimmie then fired and expended two shells. McKimmie’s actions thus constitute a knowing exertion of unauthorized control.

Second, McKimmie’s conduct deprived Ameline of his rifle. “Deprive” means to withhold property of another and “dispose of the property and use or deal with the property so as to make it unlikely that the owner will recover it.” Section 45-2-101(19) (d), MCA. After he shot his wife, McKimmie took Ameline’s rifle and fled from the scene. McKimmie testified that he stopped his car on Interstate 15 near Gore Hill. He stated: “I grabbed the rifle and tossed it over the roof of the car.” Such abandonment plainly deprived Ameline the use of his property. Only by chance, the rifle was recovered ten days later. We hold that the physical evidence and McKimmie’s own admissions fully support his conviction for theft.

c. Tampering

The Mauser rifle and the victim’s purse were found by highway workers on June 16,1987. The purse had identification in it showing that it belonged to Valarie. Ameline identified the rifle as his. The rifle had already begun to rust.

Tampering is defined in Section 45-7-207(1), MCA:

“A person commits the offense of tampering with or fabricating physical evidence if, believing that an official proceeding or investigation is pending or about to be instituted, he: (a) alters, destroys, conceals or removes any record, document, or thing with purpose to impair its verity or availability in such proceeding or investigation. [Emphasis added.]”

On the witness stand, McKimmie admitted that he discarded the rifle and purse in the ditch. However, McKimmie contends that he was too distraught to have formed the requisite mental state or belief that an official investigation was pending.

The District Court reviewed the evidence, observed McKimmie’s testimony and assessed his veracity. A trier of fact may infer the requisite mental state from a defendant’s conduct and statements. State v. Pierce (1982), 199 Mont. 57, 63, 647 P.2d 847, 851. Mc-Kimmie removed and concealed the evidence. He not only impaired its availability, but also caused its condition to change. Viewed in a light most favorable to the State, the evidence was reasonably interpreted and adequately supports McKimmie’s conviction of tampering with evidence.

We affirm the four convictions.

MR. JUSTICES SHEEHY, HARRISON, GULBRANDSON and McDonough concur.


author: MR. JUSTICE McDONOUGH

text:
    In re the MARRIAGE OF CAROL C. DALLEY, Petitioner and Appellant, and MARK F. DALLEY, Respondent and Respondent.
    No. 87-548.
    Submitted on Briefs March 31, 1988.
    Decided June 7, 1988.
    Rehearing Denied July 7, 1988.
    756 P.2d 1131.

      Davidson & Poppler, Doris M. Poppler, Billings, for petitioner and appellant.
    Sandall, Cavan, Smith & Grubbs, John J. Cavan, Billings, for respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal from the Thirteenth Judicial District involves the division of a marital estate in a dissolution proceeding. Appellant Carol C. Dailey (Carol) contends that the District Court erred in arriving at her share of the estate, and respondent and cross-appellant, Mark F. Dailey (Mark) makes the same claim in regard to his share on cross-appeal. We affirm the division made by the District Court.

The issues presented for review on appeal are as follows:

(1) Whether the Court abused its discretion in apportioning the parties’ marital assets?

(2) Whether the Court erred in failing to award Carol assets traceable as gifts from her relatives.

(3) Whether the Court erred in failing to date the value of the parties’ assets in 1976?

The issue presented on cross-appeal is:

Whether the Court abused its discretion in arriving at Mark’s share of the marital assets?

The relevant facts are briefly as follows: The parties married on June 28, 1946, and the lower court dissolved the marriage by interlocutory order on April 10, 1987. The property division went to trial on April 23, 27, 28, and 30, 1987. After the trial on November 10, 1987, the District Court’s decree divided the parties’ assets. Under the decree Carol received property valued at $766,988.60, and Mark received property valued at $379,001.40.

The lower court made extensive findings on the contributions of the parties toward acquiring and maintaining the assets in the marital estate. In summary, the lower court found that: in the early years of the marriage both parties worked and contributed their income to the expenses of the marriage; that later Carol cared for the parties’ children and Mark worked to support the family; that gifts of money, stock, and financial assistance to Carol from her father, aunt, and uncle before the marriage, and other gifts from her father during the marriage, were used during the marriage to supplement the parties’ income; that the parties’ bought and sold a Billings tavern during the marriage; that Carol started her own business during the marriage; that the parties own their own home; that Carol holds investment assets which produce income from interest and dividends; that Carol acquired other investment assets with investment earnings; that Mark was gifted stock from Carol’s father during the marriage and used the stock and his share of sale proceeds from the tavern to borrow money for a business venture which has lost money; that since 1975 the parties contributed separately to a joint account used to cover household expenses; that in 1976 the parties began to file individual income tax returns; that from 1975 to 1986, Carol contributed $112,076.93 to family living expenses while Mark contributed $53,550; and that in the near future Carol would receive an inheritance from her deceased father’s estate.

The lower court listed the parties’ assets as follows:

ASSETS

1. 6,672 shares Amoco $497,064

2. 667 shares Cypress Minerals 14,174

3. 1,185 shares Lehman Brothers 19,849

4. 160 shares Mont. Power Co. Preferred 4,280

5. Tax exempt bonds-face value $155,000 183.966

6. Money Market Account 13,808

7. IRA (wife) 15,455

8. CD 60,000

9. 1978 Oldsmobile 3,000

10. Manpower, Inc. 15,000

11. CD 100,000

12. IRA (husband) 7,500

13. Mont. Power Co. (Husband-savings) 4,328

14. Cash value life insurance 5,066

15. Contract sale of poker & keno machines 42,000

16. 1981 Chrysler 3,000

17. Country Club membership 5,000

18. Money Market CD 87,000

19. Family home and contents per Ex. C 70,000

TOTAL ASSETS............................ $1,150,490

The lower court did not list Carol’s expected inheritance as an asset in the marital estate.

From the total asset figure the lower court subtracted Mark’s liabilities of $180,252, to arrive at a net value of the parties’ assets of $970,238. The District Court then made the division as follows:

“Asset items 1 and 2 shall be wife’s because these are stocks gifted to her by her family and the proceeds of stock splits and spinoffs from those gifts.
“Asset items 3 through 10 shall be wife’s but the values of asset Items 3 through 10 shall be divided 70% to wife and 30% to husband because she has been substantially more instrumental in the acquisition, preservation, management and accumulation of these assets and because gifts from her family were also important to her ability to put together these assets; 30% to husband fairly reflects his contribution to preservation of these assets.
“Asset items 11 through 18 are set over to husband because these items have been managed by him and it is necessary that he have these items to achieve an equitable apportionment.
“Asset item 19 is set over to wife but the value thereof shall be equally split for this is an equitable apportionment of the family home and its contents.
“The liabilities, items 20 and 21 are set over to husband because he is responsible for their creation and continued existence and he has the assets which are pledged as security for their payment.”

Issue I.

Carol contends that the lower court abused its discretion in dividing the parties’ assets. First, she argues that the division is unfair because the majority of her share is traceable to gifts from her relatives. Carol also contends under this issue that the lower court failed to consider her father’s contribution to the construction of the family home, and failed to consider her right to half the proceeds from the sale of the tavern in Billings.

In reviewing a district court’s division of marital property this Court will reverse a district court:

“only upon a showing that the district court has acted arbitrarily or has committed a clear abuse of discretion, resulting in either instance in substantial injustice.”

In re the Marriage of Hall (Mont. 1987), [225 Mont. 36,] 740 P.2d 684, 686, 44 St.Rep. 1321, 1323.

We reject Carol’s contentions on this issue because Section 40-4-202, MCA, gives the lower court the discretion to consider factors in addition to the source of the property. In re the Marriage of Vance (1983), 204 Mont. 267, 275, 664 P.2d 907, 912. Here, the lower court found that:

“Wife’s investments have been substantially more successful than husband’s and the generosity of her family has played a substantial part in the accumulation of the assets the parties own. But husband worked and earned a good income during the entire marriage. That income and wife’s income have been used by the parties to rear the children, support the family, and to some extent, have aided wife in accumulating, saving, maintaining and increasing those assets managed by her.”

In addition to this finding, the lower court also found that Carol would be more likely to acquire greater capital assets than Mark, that Carol would shortly receive a substantial inheritance, and that Mark had contributed to the acquisition and maintenance of the family home and the tavern. These findings are supported by substantial evidence, they weigh in favor of distributing a portion of assets contested by Carol on appeal to Mark, and they demonstrate that the contributions of Carol’s relatives were considered. Thus, there is no clear abuse of discretion here, and we affirm on this issue.

Issue II.

Carol maintains that inasmuch as spouses may conduct financial transactions independently, (see Sections 40-2-301 to -302, MCA; Section 40-2-202, MCA; Section 40-2-106, MCA), and inasmuch as Mark’s contribution to acquiring and maintaining her investment assets was minimal, we should conclude that the District Court abused its discretion by not awarding more of the investment assets to Carol. Carol fails to specify which assets should have been awarded to her under this theory, but we must assume from the facts of this case that the assets she complains of are the items numbered 3-10 in the lower court’s asset list. Carol received 70% of these assets, and Mark received 30%.

First, in regard to the statutes cited, the “application of these statutes to married couples is undeniable, but there is no intimation that they are at all controlling upon dissolution of the marriage by divorce.” Cook v. Cook (1972), 159 Mont. 98, 102, 495 P.2d 591, 593. We hold here that they do not control over the more particular provisions of Section 40-4-202, MCA. Thus, we are not persuaded to reverse by their citation.

Second, Carol contends that we should follow the rationale employed by the Oklahoma Supreme Court in Mothershed v. Mothershed (Okla. 1985), 701 P.2d 405, a dissolution property dispute where the Court stated:

“The gift of property to a spouse during marriage is considered separate property of such spouse and upon divorce it cannot be considered as having been acquired by the joint industry, or efforts of the parties to the subject marriage . . . .’If one spouse brings separate property to the marriage, increased or enhanced value of the property will not constitute jointly acquired property during coveture unless the enhancement value was the result of joint efforts, skill or funds of both spouses.’ ”

Mothershed, 701 P.2d at 408 (quoting Templeton v. Templeton (Okla. 1982), 656 P.2d 250, 252). We have held similarly that where none of the value of gifted property is a product of contribution from the marital effort, the District Court can justifiably find that the non-acquiring spouse has no interest in the property. In re the Marriage of Herron (1980), 186 Mont. 396, 404, 608 P.2d 97, 101. However, we also stated in Herron that in determining:

“the exact distribution of this type of marital asset, no set formula can be established as to how the assets should be equitably distributed. Each case has to be decided on its own merits.”

Herron, 608 P.2d at 100.

As stated in regard to the first issue, the lower court awarded some of Carol’s investment assets to Mark because of Carol’s superior ability to acquire capital assets and her recent inheritance, Mark’s current indebtedness, and Mark’s contributions of income during the marriage which to some extent aided Carol’s investment ventures. The consideration of these facts as affecting the distribution of gifted property is proper under Section 40-4-202, MCA, and the facts themselves distinguish this case from Herron. Thus, there is no clear abuse of discretion on this issue and we affirm.

Issue III.

Carol contends that the District Court abused its discretion by failing to value the marital assets in 1976. She maintains that in 1976 the parties terminated their marital relationship and began to change their financial status due to individual initiative. Thus, according to Carol, In re the Marriage of Wagner (Mont. 1984), [208 Mont. 369,] 679 P.2d 753, 41 St.Rep. 409, mandates valuation of the assets in 1976. Mark responds that the marriage relationship was not terminated in 1976, and that Wagner may be distinguished from the case at hand.

First, in Wagner, this Court held that the parties’ unique financial circumstances mandated a valuation of marital assets two years before the date of formal legal dissolution because: (1) the assets were acquired after the marital relationship was irretrievably broken, (2) the disparity of the parties’ business acumen resulted in a change of the parties’ financial status after the separation so that selection of the later date would create an unjust distribution. Wagner, 679 P.2d at 758. In this dispute, unlike in Wagner, the evidence preponderates against a finding that the marriage was irretrievably broken in 1976. The parties here lived together and shared expenses until June of 1986 when Carol filed her petition for dissolution. Thus, there is no separation of the parties and their assets as in Wagner, and the rule from Wagner does not apply. Furthermore, the award of some of the appreciation of Carol’s investment holdings is supported by the findings we have referred to in the first two issues. Thus, we affirm on all issues presented on Carol’s appeal.

On cross-appeal Mark contends that the District Court failed to properly value his contribution to the parties’ asset accumulation. Specifically, Mark contends that as the chief breadwinner of the family, his contributions of income entitle him to a larger portion of the marital assets. We reject this contention. The record shows that Carol contributed her labor as homemaker during much of the period that Mark claims credit for as the “chief breadwinner”, and the record also reveals that gifts to Carol and Mark of stock from Carol’s relatives furthered the establishment and accumulation of marital assets. Section 40-4-202, MCA', mandates consideration of Carol’s contribution and the contribution of her relatives. Thus, the District Court did not abuse its discretion by undervaluing Mark’s contribution.

Mark also argues that the District Court should have included the value of Carol’s expected inheritance in the marital estate. A district court may commit error by failing to consider an expected inheritance in distributing the marital estate. In re the Marriage of Alt (Mont. 1985), [218 Mont. 327,] 708 P.2d 258, 260, 42 St.Rep. 1621, 1626. However, property gifted during the marriage may be excluded from the marital estate where an objecting spouse can claim no contribution to the property’s value. Becker v. Becker (Mont. 1985), [218 Mont. 229,] 707 P.2d 526, 528, 42 St.Rep. 1541, 1544. It follows from Becker that an expectation of property where an objecting spouse can claim no contribution may be properly excluded from the marital estate. That is the case here, and the District Court properly excluded Carol’s expected inheritance. All issues are affirmed.

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


author: MR. JUSTICE SHEEHY

text:
    In re the MARRIAGE OF THOMAS LUISI, Petitioner and Appellant, and JAN J. LUISI, Defendant and Respondent.
    No. 87-476.
    Submitted on Briefs April 21, 1988.
    Decided June 9, 1988.
    756 P.2d 456.

      Swanberg, Koby & Swanberg, Gorham E. Swanberg, Great Falls, for petitioner and appellant.
    Jardine,. Stephenson, Blewett & Weaver, Joseph G. Mudd, Great Falls, for 'defendant and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Thomas Luisi (Tom) appeals from the decree of legal separation ordered by the District Court of the Eighth Judicial District, Cascade County. We affirm.

The issues before the Court are:

1. Did the trial court err by excluding the remaining portion of Jan Luisi’s inheritance from the marital estate?

2. Did the trial court err by awarding Jan Luisi 50 percent of the value of Tom Luisi’s military pension?

3. Did the trial court fail to accurately value and distribute the marital estate?

4. Did the trial court err by awarding maintenance?

Tom and Jan were married on July 22, 1967 in Setauket, New York. Shortly thereafter, Tom enlisted in the United States Air Force.

Tom has remained in the Air Force throughout the course of the marriage and has achieved a measure of success. At the time of trial, he held the rank of major and earned in excess of $46,000 per year. Tom has also acquired two college degrees, including a Masters, and a pension valued at $460,000 while serving his country. Tom planned on retiring shortly after trial.

The marriage was also blessed with three children. Two of the children were minors at the time of trial. The third was enrolled at Montana State University. Jan spent the majority of the twenty year marriage raising the children and maintaining the family home.

Although Jan has started college classes, she will not receive a degree until June, 1990. In addition, her work experience is extremely limited. The District Court therefore found that Jan was marginally employable until she completed her education and ordered maintenance of $650 per month until June, 1990. The court also excluded the remainder of Jan’s inheritance from the marital estate and awarded her 50 percent of Tom’s pension. Of the remaining property, Tom was awarded $98,000 and Jan $52,091. This appeal followed.

The first specification of error concerns the propriety of excluding the remainder of Jan’s inheritance from the marital estate. Tom initially argues that the court’s failure to recognize his contribution to the maintenance of the inheritance, and the subsequent exclusion of the inheritance from the marital estate, were error. He also finds fault with the court’s alleged failure to adequately delineate the assets attributable to Jan’s inheritance. We conclude both arguments are without merit.

Generally, property acquired during the course of a marriage, belonging to either or both parties, however acquired, is deemed to be part of the marital estate. See Section 40-4-202, MCA. However, the overriding goal of Montana’s property division statute is equity. The legislature has therefore provided that in the case of property acquired by gift, bequest, devise, or descent, the court shall, inter alia, consider “the extent to which [the non-acquiring spouse’s] contributions have facilitated the maintenance of [the] property” so acquired. Section 40-4-202(l)(b). In the absence of a significant contribution on the part of the non-acquiring spouse, the court remains free to exclude such assets or property from the marital estate. See Marriage of Herron (1980), 186 Mont. 396, 404, 608 P.2d 97, 101; Marriage of Jorgensen (1979), 180 Mont. 294, 299, 590 P.2d 606, 610.

Although Tom testified that he contributed to the maintenance of Jan’s inheritance, the evidence demonstrates the contrary. Jan received, by way of gifts and inheritance, approximately $214,000 from her parents during the late 1970’s. However, a significant portion of the inheritance has been spent.

As a result of Tom’s failure to provide Jan with a household budget sufficient to adequately feed, cloth and shelter the family, Jan was forced to use her inheritance to meet usual expenses. Tom also failed to provide Jan with any support during the pendency of this proceeding. It is apparent that such conduct is not conducive to the maintenance of the inheritance. We therefore conclude that the District Court correctly excluded the remainder of Jan’s inheritance from the marital estate.

In the alternative, Tom argues that the court failed to adequately identify property subject to the inheritance exclusion. Specifically, that the court failed to make a finding of fact listing the inheritance assets. While we agree that a separate finding of fact specifically listing the property derived from Jan’s inheritance is the preferred method of excluding property in such cases, we do not find the failure to make such a finding to be reversible error in this instance.

Following the presentation of extensive evidence on the extent, value and source of property held by the parties, the District Court made findings delineating and distributing the property contained within the marital estate. The court also made detailed findings distributing personal property in conformance with a stipulation between the parties and found that $124,666.13 remained of Jan’s inheritance. In light of the court’s detailed findings, the assets the court deemed to be subject to the inheritance exclusion are clearly discernible. We therefore find no error.

The second specification of error concerns the equal division of the present value of Tom’s military pension. The crux of Tom’s argument is that it is inequitable to exclude the income generating property contained within Jan’s remaining inheritance and also award Jan a 50 percent interest in Tom’s pension. However, it is not the function of this Court to conduct de novo determinations of equity. Absent a clear error in the findings, the award of property made by the District Court must be upheld. Rule 52(a), M.R.Civ.P.; In Re Marriage of Loegering (Mont. 1984), [212 Mont. 499,] 689 P.2d 260, 41 St.Rep. 1892; Grenfell v. Grenfell (1979), 182 Mont. 229, 596 P.2d 205.

Tom and Jan’s marriage spanned 19 of the 20 years the military pension was accruing. During that time, Jan was foregoing employment, and the attendant retirement benefits, in order to raise the couple’s children and maintain the family home. In addition, Jan’s contribution as a homemaker helped Tom acquire two college degrees and a significantly higher earning capacity than her own. Under such circumstances, we do not find the equal division of Tom’s pension to be a clear abuse of discretion. See, e.g. In Re Marriage of Kecskes (Mont. 1984), [210 Mont. 479,] 683 P.2d 478, 41 St.Rep. 1170.

The third specification error alleges that the District Court improperly valued and distributed the marital estate. However, Tom in essence, merely attaches his proposed valuation on property, the majority of which the court determined to be subject to the inheritance exclusion, and argues that the court failed to adequately value and distribute the property. In light of our holding on the identification of property contained within Jan’s inheritance, we limit our discussion to the issue of valuation.

Generally, the District Court is vested with wide discretion in the performance of its duty to achieve an equitable distribution of property in dissolution proceedings. Contrary to Tom’s position, the court is not bound by the opinion of a particular party or expert. Rather, the court remains free, in its discretion, to adopt any reasonable valuation of property which is supported by the record. See In Re Marriage of Hurly (Mont. 1986), [222 Mont. 287,] 721 P.2d 1279, 1285, 43 St.Rep. 1271, 1278; In Re Marriage of Garst (1983), 206 Mont. 89, 669 P.2d 1063.

Upon review of the record, we find that the valuations employed by the District Court are supported by substantial credible evidence. We therefore affirm the District Court’s valuation and distribution of the marital estate.

Finally, it is argued that the award of maintenance was reversible error. We disagree.

Generally, the award of maintenance is not favored in states, such as Montana, which have adopted the Uniform Marriage and Divorce Act. The intent of the drafters, as demonstrated by the Commission Comments to Section 40-4-203, MCA, indicates a desire to “encourage the court to provide for the financial needs of the spouses by property disposition rather than an award of maintenance.” Commission Comments, Montana Code Annotated Annotations, Vol. 5, pg. 126; see also In Re Marriage of Johnsrud (1977), 181 Mont. 544, 572 P.2d 902. However, the practical reality of the myriad of diverse factual situations confronted by district courts often precludes strict adherence to the policy regarding maintenance while achieving the overriding goal of an equitable dissolution. Consequently, the court must first equitably distribute the marital property. Any additional needs of a spouse are then addressed through maintenance. Johnsrud, supra.

As a condition precedent to an award of maintenance, the court must find that the spouse seeking maintenance “lacks sufficient property to provide for his reasonable needs and is unable to support himself through appropriate employment.” Section 40-4-203(1), MCA; see also In Re Marriage of Schenck (Mont. 1984), [213 Mont. 310,] 692 P.2d 6, 41 St.Rep. 2137; In Re Marriage of Hilt (Mont. 1984), [209 Mont. 140,] 679 P.2d 783, 41 St.Rep. 604. Although the District Court specifically found that Jan satisfied the statutory criteria, Tom argues that such findings were error. Specifically that Jan’s inheritance provides sufficient income producing property and that Jan can find appropriate employment to meet her reasonable needs.

We yet again note that this Court’s function on appeal is limited to a determination of whether the findings of the court are clearly erroneous. In contrast, the discretion vested in the District Court is necessarily as broad as ours is limited. In Re Marriage of Tow (Mont. 1987), [229 Mont. 483,] 748 P.2d 440, 44 St.Rep. 2154. Given the limited duration of the maintenance award, we do not find the District Court clearly in error.

The term “sufficient property,” as used in Section 40-4-203, MCA, has been interpreted by this Court to mean income producing property. See Tow, supra; Bowman v. Bowman (Mont. 1981), 633 P.2d 1198, 38 St.Rep. 1515. In addition, “this Court has held that ‘appropriate employment’ . . . must be determined with relation to the standard of living achieved by the parties during the marriage.” In Re Marriage of Madson (1978), 180 Mont. 220, 590 P.2d 110. Section 40-4-203, MCA, when read in conjunction with the construction given it by this Court, mandates that an award of maintenance is appropriate when a spouse is unable to achieve a similar standard of living after dissolution, and the other spouse is able to meet his or her own needs as well as pay maintenance.

In the instant case, Jan testified that her necessary monthly living expenses amounted to $1,492. However, substantial credible evidence demonstrated that the assets awarded to Jan, including annuities held in trust for the couple’s children and a final installment from her trust, would produce $761.11 per month. In addition, the District Court determined that Jan was only marginably employable until she completed her education. In light of Tom’s earning capacity and Jan’s inability to support herself, the award of maintenance until such time as Jan completes her college degree is clearly within the court’s discretion. See, e.g. In Re Marriage of Voelkel (Mont. 1987), [226 Mont. 143,] 734 P.2d 217, 44 St.Rep. 538; In Re Mar riage of Singer (Mont. 1986), [222 Mont. 255,] 721 P.2d 755, 43 St.Rep. 1242; and Bowman, supra.

The judgment of the District Court is affirmed.

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


author: MR. JUSTICE HARRISON

text:
    AETNA LIFE INSURANCE COMPANY, a corporation, Plaintiff and Respondent, v. JAMES D. SLACK, JR., et al., Defendants and Appellants.
    No. 87-516.
    Submitted on Briefs April 28, 1988.
    Decided June 9, 1988.
    756 P.2d 1140.

      James D. Slack, Jr., Red Lodge, for defendants and appellants.
    Dorsey & Whitney, Stephen D. Bell and Mary Jo Mickelson, Billings, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Defendant/appellant James D. Slack, Jr., appeals a summary judgment granted in favor of plaintiff/respondent, Aetna Life Insurance Company. Summary judgment was granted September 18, 1986 by the Honorable Robert Holmstrom in the Thirteenth Judicial District, Carbon County, Montana. We affirm in part and remand in part.

On August 14, 1979, Bear Creek Land and Cattle Company (Bear Creek), a Montana partnership, executed a promissory note with Aetna Life Insurance Company in the amount of $2,500,000. The loan was secured by executing a “mortgage deed and security agreement” on property owned by Bear Creek located in Carbon County. Financing statements were also filed to perfect the mortgagee’s security interest in certain fixtures and personal property described in the mortgage. The defendant/appellant, James D. Slack, Jr. (Slack), subsequently assumed the obligations under the mortgage and promissory note by entering an “assumption agreement” January 4, 1982. As part of the agreement, he received the property used as security in the mortgage. Title to the property was transferred to a partnership named the Sundance Land and Cattle Company, in which Slack was a partner. Additionally, on January 4, 1982, Slack and Aetna entered a “loan modification agreement and amendment to mortgage,” modifying the payment provision of the promissory note and excluding a certain portion of the land from the legal description contained in the mortgage. The financing statements were also amended.

Slack later defaulted on the promissory note and on May 25, 1984, Aetna accelerated the loan and declared the entire amount of the loan due. On April 4, 1985, Aetna filed a complaint to foreclose on the mortgaged property. Aetna moved for summary judgment and the District Court heard arguments on the motion August 18, 1986. During the hearing, Slack admitted certain payments were not made and that Aetna was entitled to a judgment on the promissory note, but objected to the nature and extent of Aetna’s prayer for relief. The District Court subsequently concluded there was no genuine issue of material fact, found Aetna was entitled to foreclose its mortgage, and granted summary judgment in Aetna’s favor. A default judgment was rendered against the remaining defendants on February 17, 1987, with the exception of the Atlantic Richfield Company which was dismissed pursuant to a stipulation with Aetna.

Slack raises seven issues for our consideration on appeal:

1. Did the District Court’s order properly foreclose appellant’s interest in the property?

2. Did the District Court commit error in not limiting the foreclosure sale to only mortgaged property?

3. Did the District Court commit error in not excluding the sale of livestock and growing crops from the sale?

4. Did the District Court commit error in ordering that the mortgaged real property be sold en masse?

5. Did the District Court use incorrect figures to calculate interest and the amount of the judgment?

6. Does the promissory note implement a usurious interest rate?

7. Did the District Court incorrectly allow a deficiency judgment against the appellant Slack?

1. Did the District Court order properly foreclose appellant’s interest in the property?

Slack contends the District Court improperly foreclosed his interest in the mortgaged property in its amended decree of foreclosure and order of sale dated September 21, 1987. Specifically, Slack challenges a statement by the District Court declaring that the defendants “have no lien, right, title, estate, claim, or interest on or to the mortgaged property, whether real, personal, or mixed hereinafter described.” Slack argues that this language incorrectly severed all of his interest in the land prior to the foreclosure sale and severely hindered his attempts to sell the land. Slack’s intent was to sell the land prior to the foreclosure sale and satisfy the amount owing on the promissory note. Slack states the wording of the order is in violation of Section 71-1-202, MCA, which states in pertinent part:

“A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale.”

The order did not violate Section 71-1-202, MCA, because it did not enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale. Further, the District Court’s order did not and could not affect Slack’s one-year statutory right of redemption. See, Section 71-1-228, MCA and Section 25-13-801 et seq., MCA. With this right of redemption, Slack had the ability to negotiate with potential third-party purchasers because he had the right to redeem the property upon obtaining sufficient financing. Therefore, the order did not incorrectly-sever Slack’s interest in the property.

2. Did the District Court commit error in not limiting the foreclosure sale to only mortgaged property?

Slack states the order directs the sale of property which is not included in the mortgage and was never intended to be used as security for the loan. Slack contends “the District Court orders and adjudges that the land and other property included in the mortgage, ‘including, but not limited to’ the property described therein, is foreclosed and ordered sold by the sheriff.” Slack argues that this language is overly broad and expressly orders that the sale not be limited to the mortgaged property. However, Slack’s argument rests on reading only isolated portions of the order. When read entirely, it is plain that the sale is to apply only to property used as security for the loan and included in the agreements between the parties.

Slack also contends that the District Court incorrectly ordered a sale of the following property:

“(d) all irrigation equipment acquired by the defendant James D. Slack, Jr., and placed by him on the mortgaged property, including, but not limited to, that irrigation equipment described in exhibits D and E to the complaint.”

Slack states that neither the mortgage or security agreements include such property. In his reply brief, Slack does admit there is specific language in his security agreement with Aetna addressing such property and we conclude this particular issue is withdrawn.

3. Did the District Court commit error in not excluding the sale of livestock and growing crops from the sale?

Slack implies in the statement of this issue that the District Court incorrectly ordered the sale of livestock at the foreclosure sale. However, he presents no further statements in support of this allegation. We are unable to locate any statements directing the sale of livestock in the order, and it does not appear that any livestock was sold. We find that this issue is without merit.

Slack also states that his “right to harvest his growing crops during the redemption period has been summarily terminated by the decree and the crops ordered sold at sheriffs sale [sic].” However, Slack does not cite the portion of the order which he claims to have this effect. Indeed, it does not appear that any such order was made. We conclude that this argument is without merit.

4. Did the District Court commit error in ordering that the mortgaged real property be sold en masse?

Slack asserts the District Court incorrectly ordered that the real property be sold as one parcel, and that the sale would have yielded a higher price if the land had been sold as separate parcels. Slack states that all of the property is not contiguous and it is capable of being rationally subdivided. He relies on Section 25-13-704(2), MCA, and contends that if a sale of real property consists of several known lots or parcels, they must be sold separately.

Slack is correct in that a foreclosure sale should reasonably attempt to obtain a maximum price for the real property. His specific reliance on Section 25-13-704, MCA, however, is misplaced because the proceedings for foreclosure of a mortgage are exclusively provided for in Section 71-1-222, MCA. See, Federal Land Bank of Spokane v. Heidema (Mont. 1986), [233 Mont. 64,] 727 P.2d 1336, 1338, 43 St.Rep. 2020, 2022; and, Thomas v. Thomas (1911), 44 Mont. 102, 119 P. 283. Whether or not it is appropriate to sell foreclosed property as one parcel or as separate parcels will depend on the particular facts of each case. Under the facts of this case, the mortgage itself provides that the land may be sold in whole. Slack did not present the District Court with any solid evidence, such as appraisals, affidavits, or other evidence, that would offer substantial proof that the property would sell for more in separate parcels. The mortgaged property was purchased and mortgaged as a single parcel. Further, Slack assumed the mortgage obligations as though the property were one unit. It is generally within the discretion of the District Court to determine whether property at a foreclosure sale shall be sold as one unit or several. See, Elston v. Hix (1923), 67 Mont. 294, 215 P. 657. Absent an abuse of that discretion we will not reverse the District Court’s determination. After reviewing the record, we conclude there is no abuse of discretion and we affirm the District Court’s determination.

5. Did the District Court use incorrect figures to calculate interest on the amount of the judgment?

Slack contends that the District Court order had the effect of charging two interest rates simultaneously resulting in a total interest rate of 19.925% per annum. In its amended decree of foreclosure and order of sale, filed on September 22, 1987, the District Court determined principal, interest, and other charges totaled $3,661,385.30 and that this amount constituted the total judgment to Aetna against Slack exclusive of the amounts contained in the bill of costs. The order refers to two different rates of interest owing to Aetna. The first rate of interest comes from the promissory note and was accruing at a rate of $985.57 per day. The second rate of interest refers to the 10% per annum statutory rate of interest. Slack contends the District Court order is worded so that interest accrues simultaneously at both rates resulting in a combined total rate of 19.925% per annum on the judgment amount. Slack bases his argument on the fact that the District Court states the interest provided in the note applies until “the date of the satisfaction of the judgment.” In contrast, the order also states the 10% statutory interest rate applies “from and after the date of judgment.” It is clear that both interest rates could not apply at the same time. Instead, it appears that the intent was to apply the rate of interest provided in the note until the date of judgment. After the date of judgment, September 22, 1987, the order clearly applies the 10% interest rate. In other words, the rate provided in the promissory note, $985.57 per day, stopped on the date of the District Court order at which time the 10% interest rate began. Aetna agrees with that interpretation and is not seeking interest at both rates in a combined fashion.

Slack also contends the amount of the judgment is in error by more than $373,000. Other than the bald assertion that the judgment amount is in error, Slack offers no specific analysis explaining why this is so. Without further explanation or analysis on the part of Slack, we find this argument has no merit.

Finally, Slack states that the District Court awarded $2,300.21 for costs and disbursements relating to the maintenance of the mortgaged property. Slack complains that there is no supporting documentation for this award in the record. Aetna makes no mention of this particular issue in its brief and the record does not appear to contain any support for this particular award. Therefore, we reverse and remand as to this particular issue only.

6. Does the promissory note implement a usurious interest rate?

Slack contends that the promissory note provides for a 15% per annum interest rate on amounts not paid when due plus a 4% late charge on those amounts. He states that the result is a 19% per annum interest rate that should be held usurious. However, in reviewing the record from the District Court we note that Slack did not present any argument relating to usury. Slack is presenting this argument for the first time on appeal. It has long been the general rule that we will not consider a legal theory raised for the first time on appeal. E.g., Hanley v. Dept. of Revenue (1983), 207 Mont. 302, 306, 673 P.2d 1257, 1259. See also, Velte v. Allstate Ins. Co. (1979), 181 Mont. 300, 304-305, 593 P.2d 454, 456-457.

7. Did the District Court incorrectly allow a deficiency judgment against appellant Slack?

Finally, Slack contends that Aetna was not entitled to a deficiency judgment because the mortgage is a purchase money mortgage for which a deficiency is not allowed. Slack relies on Section 71-1-232, MCA, which states:

“Upon the foreclosure of any mortgage, executed to any vendor of real property or to his heirs, executors, administrators, or assigns for the balance of the purchase price of such real property, the mortgage shall not be entitled to a deficiency judgment on account of such mortgage or note or obligation secured by the same.”

This statute is inapplicable to the facts of this case. Aetna is not the vendor of the real property and foreclosure of the mortgage is not executed to Aetna to satisfy the balance of the purchase price of the real property. Instead, Aetna assumed the status of mortgagee so as to secure its loan, and the foreclosure of the mortgage was executed to satisfy the amount owing on the promissory note. Section 71-1-232, MCA, does not prohibit a deficiency judgment under the facts of this case.

We affirm the judgment of the District Court with the exception of the award of Two Thousand Three Hundred Dollars and Twenty-one cents ($2,300.21) for reasons herein before stated.

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