author: JUSTICE GRAY

text:
    HENRY PRETTY ON TOP, CHAIRMAN, BOARD OF TRUSTEES, BIG HORN COUNTY HIGH SCHOOL DISTRICT NO. 2, LODGE GRASS HIGH SCHOOL, Petitioners and Appellants, v. ROBERTA SNIVELY, SUPERINTENDENT OF SCHOOLS, BIG HORN COUNTY, NANCY KEENAN, SUPERINTENDENT OF PUBLIC INSTRUCTION; DECKER PETITIONERS ELEMENTARY SCHOOL DISTRICT NO. 1, BIG HORN COUNTY; and BIG HORN COUNTY HIGH SCHOOL DISTRICT NO. 1, Respondents and Respondents.
    No. 93-289.
    Submitted on Briefs January 20, 1994.
    Decided March 22, 1994.
    51 St.Rep. 241.
    266 Mont. 45.
    879 P.2d 49.

      For Appellants: James L. Vogel, Hardin.
    For Respondents: Laurence R. Martin, Michael K. Rapkoch, Felt, Martin & Frazier, Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

Big Horn County High School District No. 2, Lodge Grass High School, appeals from an order of the Thirteenth Judicial District Court denying its petition for judicial review of a decision of the Montana Superintendent of Public Instruction. The court’s order was based on its conclusion that the petition was time-barred under § 20-6-320(4), MCA (1989). We affirm.

The Decker territory was originally located in Big Horn County High School District No. 2 (Lodge Grass). In January, 1990, a majority of registered electors residing in the Decker territory petitioned Big Horn County Superintendent of Schools Roberta Snively (Superintendent Snively) to transfer the Decker territory from Lodge Grass to Big Horn County High School District No. 1 (Hardin). The Big Horn County Commissioners ultimately certified the petition pursuant to § 20-6-320(1), MCA (1989). Superintendent Snively scheduled and held a hearing on the petition in accordance with § 20-6-320(3) and (4), MCA (1989). She subsequently issued an order transferring the Decker territory to Hardin.

Lodge Grass appealed Superintendent Snively’s order to Montana Superintendent of Public Instruction Nancy Keenan (Superintendent Keenan). On October 26, 1990, Superintendent Keenan issued an order affirming Superintendent Snively’s decision. Lodge Grass petitioned for judicial review of Superintendent Keenan’s decision on December 24, 1990.

The District Court concluded that § 20-6-320(4), MCA (1989), required Lodge Grass to file its petition within thirty days of the date of Superintendent Keenan’s decision. Based on that conclusion, it denied, as untimely, the Lodge Grass petition filed fifty-eight days after Superintendent Keenan’s decision. Lodge Grass contends that the court applied the wrong statute; it argues that § 20-3-107(2), MCA (1989), which allows a party sixty days to petition for judicial review of a state superintendent’s decision, applies to the facts before us.

We review a district court’s conclusion of law to determine whether it is correct. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474-475, 803 P.2d 601, 603. Our function in interpreting a statute is to effectuate the intent of the legislature. Minervino v. University of Montana (1993), 258 Mont. 493, 496, 853 P.2d 1242, 1244 (citation omitted). ‘Whenever possible, this court is to look to the plain meaning of the statute in determining the legislative intent.” Holly Sugar Corp. v. Dep’t of Revenue (1992), 252 Mont. 407, 412, 830 P.2d 76, 79 (citation omitted). “If the legislature’s intent can be determined from the plain meaning of the words used in a statute, we will go no further.” State ex rel. Neuhausen v. Nachtsheim (1992), 253 Mont. 296, 299, 833 P.2d 201, 204 (citation omitted).

Section 20-3-107(l)(a), MCA (1989), authorizes the state superintendent of public instruction to decide matters of controversy appealed from a decision of a county superintendent made pursuant to § 20-3-210, MCA (1989). The state superintendent’s decision in such a controversy is final unless a petition for judicial review is “commenced no later than 60 days after the date of the decision of the [state] superintendent. ...” Section 20-3-107(2), MCA (1989). Therefore, by its terms, the sixty-day period for petitioning for judicial review of a decision by the state superintendent is applicable where the underlying decision of the county superintendent is made pursuant to § 20-3-210, MCA (1989).

Section 20-3-210(1), MCA (1989), authorizes a county superintendent to “hear and decide all matters of controversy arising in his county as a result of decisions of the trustees of a district in the county.” The statute also authorizes a county superintendent to decide controversies arising under:

(a) section 20-5-304 or 20-5-311 relating to the approval of tuition applications; or
(b) any other provision of this title for which a procedure for resolving controversies is not expressly prescribed.

Section 20-3-210(l)(a) and (b), MCA (1989).

None of the § 20-3-210(1), MCA (1989), situations is present here. Section 20-3-210(1), MCA(1989), authorizes a county superintendent to review decisions initially made by a district board of trustees. In granting the transfer petition, however, Superintendent Snively was not reviewing a decision of the school trustees. She was authorized, pursuant to § 20-6-320(4), MCA (1989), to make the initial decision to grant the petition if she “consider [ed] it advisable and in the best interests of the residents of the territory.” Section 20-3-210(l)(a), MCA (1989), also has no application here because this case does not involve a tuition application. Nor does § 20-3-210(l)(b), MCA (1989), apply, because § 20-6-320(4), MCA (1989), provides a procedure for resolving controversies relating to territory transfers. Section 20-6-320(4), MCA (1989), expressly provides for the resolution of such controversies by providing both an appeal to the state superintendent from the county superintendent’s decision and, thereafter, a petition for judicial review.

Thus, a county superintendent’s decision to grant or deny a transfer petition is not a decision made pursuant to § 20-3-210, MCA (1989). As set forth above, § 20-3-107(2), MCA (1989), applies to decisions of the state superintendent only when the underlying decision of the county superintendent is made pursuant to § 20-3-210, MCA (1989). Therefore, we conclude that § 20-3-107, MCA (1989), is not applicable here.

The entire process for transferring territory from one high school district to another by means of a petition is contained in § 20-6-320, MCA (1989). In addition to providing for the initial decision-making by the county superintendent, § 20-6-320(4), MCA (1989), delineates the available procedures for review of that decision:

(4)... [the order of the county superintendent] shall be final 20 days after its date unless it is appealed to the superintendent of public instruction by a resident of either district affected by the territory transfer. The decision of the superintendent of public instruction ... is final 30 days after its date. [Emphasis added.]

Section 20-6-320(4), MCA (1989). The statutory language regarding appeal of the county superintendent’s decision requires that an appeal be filed within the twenty-day period following the decision. This language clearly sets forth the legislature’s intent to provide both the opportunity for appeal from the county superintendent’s decision and a specific time within which such an appeal must be taken.

The statutory language specifying when the decisions of the state superintendent and the county superintendent become final is similar. Because the language is similar, it is clear that the legislature intended a similar result; that is, the state superintendent’s decision is final thirty days after its date, absent any appeal. Thus, we conclude that Lodge Grass was required to file its petition for judicial review within thirty days of the date of the state superintendent’s decision.

Lodge Grass cites our decision in Trustees, Carbon Co. Sch. Dist. v. Spivey (1991), 247 Mont. 33, 805 P.2d 61, as authority for the application of the sixty-day period contained in § 20-3-107(2), MCA (1989), here. Spivey is distinguishable from, and not inconsistent with, the present case.

In Spivey, as here, we were faced with two different “statutes of limitations” for a petition for judicial review of a state superintendent’s decision. The similarity, however, ends there. In Spivey, we rejected the plaintiff’s argument that the thirty-daytime limit contained in § 2-4-702(2)(a), MCA, applied. We determined that the sixty-day period in § 20-3-107(2), MCA, applied to a state superintendent’s decision involving the termination of a tenured teacher because such a termination is a matter of controversy decided pursuant to § 20-3-210, MCA. Spivey, 805 P.2d at 63. We further reasoned that § 20-3-107, MCA, was a specific statute dealing with school district controversies, while § 2-4-702, MCA, dealt with controversies arising from administrative agency decisions in general. Spivey, 805 P.2d at 63.

Here, §§ 20-3-210 and 20-3-107, MCA (1989), are inapplicable by their terms. Superintendent Snively made her territory transfer decision pursuant to § 20-6-320, MCA (1989), not § 20-3-210, MCA (1989). Moreover, this case does not involve two applicable statutes, one specific and one general; it involves, instead, one statute expressly applicable by its terms and one statute not applicable by its terms. Therefore, Spivey is inapposite here.

Superintendent Keenan issued her order on October 26, 1990. Pursuant to § 20-6-320(4), MCA (1989), that decision became final on November 26, 1990, absent a petition for judicial review on or before that date. Lodge Grass filed its petition for judicial review on December 24,1990. We hold that the District Court did not err in concluding that the petition was untimely and denying the Lodge Grass petition for judicial review.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, NELSON and WEBER concur.


source: Caselaw Access Project

license: Public Domain

text:
    EUGENE BRADLEY BLANEY, Petitioner, v. JAMES M. GAMBLE, Respondent.
    No. 94-169.
    Dated May 17, 1994.
    51 St.Rep. 466.
    266 Mont. 51.
    879 P.2d 51.
   ORDER

Eugene Bradley Blaney (Blaney), Petitioner herein, has filed his Petition for Writ of Habeas Corpus. On September 25, 1988, Blaney, pursuant to a plea agreement, pled guilty to one count of sexual assault, a felony. On December 30, 1988, he was sentenced to ten years in Montana State Prison, which sentence was suspended on conditions. Blaney’s suspended sentence was revoked on August 1, 1989, for violation of the conditions of his probation. Blaney did not file a motion to withdraw bis guilty plea nor did he file a direct appeal. However on November 21,1991, he filed a petition for post conviction relief claiming (1) that he had new evidence to present; (2) that his plea was coerced; and (3) that his attorney rendered ineffective assistance in his defense by failing to present certain witness testimony. We denied that petition on January 30, 1992. Subsequently Blaney filed the instant petition for writ of habeas corpus on April 7, 1993.

In reviewing his present petition, and despite his contentions to the contrary, Blaney attacks his conviction or sentence at grounds A, B, C, D, F and those portions of ground G dealing with his sentence. Habeas Corpus is not available to attack the validity of a conviction or sentence of a person who has been adjudged guilty in a court of record and has exhausted the remedy of appeal. Moreover, habeas corpus is not available to attack the legality of an order revoking a suspended sentence. Section 46-22-101(2), MCA, (1991). Since Blaney has been adjudged guilty in a court of record and was afforded the right of appeal, § 46-20-104, MCA, habeas corpus will not issue.

Furthermore, even if we review Blaney’s petition as one for post conviction relief, Tecca v. McCormick (1990), 246 Mont. 317, 318, 806 P.2d 11, 12, his petition is without merit. Blaney’s present claims are substantially the same as those raised in his November 1991 petition for post conviction relief which we denied. Accordingly, Blaney’s present claims are barred by res judicata, Hawkins v. State (1990), 242 Mont. 348, 351, 790 P.2d 990, 992, and those claims and any new claims are also procedurally barred by operation of § 46-21-105, MCA, which provides that all grounds for relief claimed by a petitioner under § 46-21-101, MCA, are waived unless raised in the original or amended petition for post conviction relief.

Finally, as to ground E and portions of ground G (Blaney’s Exhibit Q attached to his petition) concerning his parole eligibility, the requested writ of habeas corpus will not issue because Blaney is not unlawfully imprisoned or restrained of his liberty. Section 46-22-101(1), MCA. Blaney was denied parole because the District Court provided that he would not be eligible for parole until he had completed the sex offender program. Blaney has not completed that program. Moreover, that, combined with the fact that Blaney had pled guilty to sexually assaulting a juvenile, had a prior criminal history and had his probation revoked, militates against any allegation or conclusion that, in denying parole, the parole board acted arbitrarily or capriciously, thereby denying Blaney his constitutional right to due process. Greenholtz v. Inmates of Nebraska (1979), 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668; Superintendent v. Hill (1985), 472 U.S. 445, 456, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356.

IT IS ORDERED that Petitioner’s Petition for Writ of Habeas Corpus should be and the same is hereby denied.

IT IS FURTHER ORDERED that, to the extent that we deem Petitioner’s petition to be one for post conviction relief, grounds A, B and D are barred by res judicata and grounds C, F and those portions of ground G pertaining to the imposition of sentence are procedurally barred by § 46-22-105, MCA, inasmuch as those grounds were not raised in Blaney’s November 1991 petition for post conviction relief.

IT IS FURTHER ORDERED that the Clerk of this Court shall mail a copy of this order to counsel of record and, personally, to Petitioner Blaney.

DATED this 17th day of May, 1994.

J. A. TURNAGE, Chief Justice

JOHN CONWAY HARRISON, Justice

KARLA M. GRAY, Justice

WILLIAM E. HUNT, SR., Justice

JAMES NELSON, Justice


author: JUSTICE TRIEWEILER

text:
    ROBERT KING, Plaintiff and Respondent, v. ROBERT ZIMMERMAN and CONNIE ZIMMERMAN and BIG Z, INC., a Montana corporation, Defendants and Appellants.
    No. 94-026.
    Submitted on Briefs June 9, 1994.
    Decided August 1, 1994.
    51 St.Rep. 659.
    266 Mont. 54.
    878 P.2d 895.

      For Appellants: Michael G. Majerus, Billings.
    For Respondent: Brad L. Arndorfer, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Robert King filed an action in the District Court for the Thirteenth Judicial District in Yellowstone County in which he alleged breach of contract, breach of the implied covenant of good faith and fair dealing, and conversion of property by defendants Robert and Connie Zimmerman and Big Z, Inc. Following a five-day jury trial, a verdict was returned for King and judgment was entered against Big Z and Connie Zimmerman. King was awarded compensatory damages for breach of contract and conversion in the amount of $9,654.24. He was awarded punitive damages in the amount of $1.00 against Big Z, and $35,000 against Connie Zimmerman, on the basis that they had acted with actual malice when they wrongfully converted King’s property. Big Z and Connie Zimmerman appeal.

We affirm.

The following issues are raised on appeal:

1. Did the District Court err when it refused to grant the defendants’ motion for a directed verdict on the issue of conversion?

2. Did the District Court err when it refused to grant the defendants’ motion for a directed verdict on the issue of whether Connie Zimmerman was personally liable for conversion of property?

3. Did the District Court err when it affirmed the jury’s award and assessed punitive damages against Big Z and Connie Zimmerman?

4. Did the District Court abuse its discretion when it allowed into evidence an audio taped deposition of a witness for the plaintiff?

5. Did the District Court abuse its discretion when it allowed King to introduce evidence in support of claims which the defendants contend were not raised in the pretrial order?

This litigation involves a lease agreement between Robert King and a trucking firm known as Big Z, Inc., owned by Robert and Connie Zimmerman. Robert Zimmerman, as president of Big Z, owned 1899 of the 1900 shares of stock of the corporation. Connie Zimmerman, the corporation’s secretary, owned the remaining one share of stock.

On May 10, 1991, King and Big Z entered into an agreement whereby King leased to Big Z a truck that he owned, and Big Z agreed to dispatch commercial loads to be hauled across the country by King or King’s drivers. King was to receive 85 percent of the gross revenue from each haul, minus certain adjustments, and the remaining 15 percent of the gross revenue was to go to Big Z.

The agreement stated that King would provide the necessary permits, licenses, and insurance to haul commercial loads. King testified that Big Z initially purchased the required permits in the name of Big Z and King, and that he was reimbursing Big Z for these costs out of his monthly receipts. The agreement further provided that King, as lessor, could terminate the lease agreement 30 days after providing written notice, and that Big Z, as lessee, could terminate the lease “in a 24 hour period with extreme cause, such as failure to perform.”

The dispute leading to this lawsuit began with a load of cherries which were to be transported from the west coast to the east coast by Greg Ramey. The load was delivered late and resulted in substantial losses to Big Z. Ramey remained on the east coast with King’s truck, and King eventually flew to the east coast in order to retrieve his truck. In connection with his return to Montana, King agreed to deliver a load of gambling “pull tabs” to the west coast. The specific events which occurred are in dispute, but King apparently returned to Montana with the load of pull tabs and then declined to deliver the load to Washington state.

In response, the Zimmermans terminated the lease agreement and immediately attempted to retrieve the license plates and other permits from King’s truck which were in Big Z’s name. Unable to do so, Connie Zimmerman contacted the Yellowstone County Sheriff’s office on July 27, 1991, and reported that the semi-tractor had been stolen from their business. The sheriff’s office refused to impound the truck, but did retrieve the license plates and permits, as requested by Connie Zimmerman.

On May 5, 1992, King filed a complaint against Big Z and Robert Zimmerman in which he alleged breach of contract, breach of the implied covenant of good faith and fair dealing, and conversion of property. King claimed that Robert Zimmerman and Big Z breached the lease by “willfully and intentionally refusing to dispatch plaintiff and making false reports of theft to the Yellowstone County Sheriff’s Department” and that they had converted King’s property when they caused the sheriff’s office to confiscate “tags, insurance and permits ... in the name of Big Z for which the plaintiff had paid.” Finally, the complaint alleged that “defendants are further liable for punitive damages for their intentional and malicious act of making false police reports in order to convert them [the property seized] from the plaintiff’s use to their own.” On June 15, 1993, the complaint was amended to include Connie Zimmerman as a defendant.

A jury trial was held on August 23-27, 1993. The jury found a breach of contract or the obligation of good faith and fair dealing, and assessed damages against Big Z in the amount of $8,288.33 as compensatory damages, plus interest and costs. The jury also found conversion by Big Z and Connie Zimmerman, and awarded compensatory damages of $1,117.23. Furthermore, the jury found that Big Z and Connie Zimmerman had acted maliciously with respect to the conversion, and returned exemplary damages against Big Z in the amount of $1.00 and against Connie Zimmerman in the amount of $35,000. No damages were assessed against Robert Zimmerman personally.

The court entered findings of fact and conclusions of law related to the amount of punitive damages on September 8,1993, and awarded punitive damages to King in the amounts assessed by the jury. From the judgment entered on September 16, 1993, Big Z and Connie Zimmerman appeal.

ISSUE 1

Did the District Court err when it refused to grant the defendants’ motion for a directed verdict on the issue of conversion?

Big Z and Connie Zimmerman contend that the court should have granted their motion for a directed verdict on the issue of conversion because the items that Connie Zimmerman requested the sheriff’s department to return were license plates and permits which were owned by Big Z. They assert that King could not demonstrate that he owned the property or had a right of possession, and therefore, could not prove conversion or wrongful possession of this property by Big Z or Connie Zimmerman.

A court may grant a directed verdict only when it appears as a matter of law that the nonmoving party could not recover upon any view of the evidence, including the legitimate inferences to be drawn from the evidence. Kearney v. KXLF (1994), 263 Mont. 407, 869 P.2d 772, 777. A directed verdict for the defendant is not proper if reasonable persons could differ regarding the conclusions which could be drawn from the evidence, and a directed verdict is proper only in the complete absence of any evidence to warrant submission to the jury. Dees v. American National Fire Insurance (1993), 260 Mont. 431, 442, 861 P.2d 141, 148; Moralli v. Lake County (1992), 255 Mont. 23, 27, 839 P.2d 1287, 1289.

The standard we use in reviewing denials of motions for directed verdicts only requires substantial evidence in the record to support the finding of the jury. Lane v. Dunkle (1988), 231 Mont. 365, 369, 753 P.2d 321, 323. We review the evidence in a light most favorable to the prevailing party, and will reverse only where there is a lack of substantial evidence to support the judgment. Lane, 753 P.2d at 323. Substantial evidence is evidence which a reasonable mind might accept as adequate to support a conclusion, even if it is weak or conflicting. Arnold v. Boise Cascade (1993), 259 Mont. 259, 265, 856 P.2d 217, 220.

Conversion requires property ownership, the owner’s right of possession, and the unauthorized control over the property by another resulting in damages. Lane, 753 P.2d at 323. However, in an action for conversion, “property ownership” does not mean that the plaintiff must have absolute or unqualified title to the property in question, but rather that he or she must have an interest in the property and the right to possess the property at the time of the alleged conversion. Kinsman v. Stanhope (1914), 50 Mont. 41, 144 P 1083; 18 Am. Jur. 2d Conversion § 75 (1985). Ordinarily, an immediate right to possession at the time of conversion is all that is required to enable a plaintiff to maintain an action. 18 Am. Jur. 2d Conversion § 76 (1985).

This statement of the law of conversion was properly reflected in the following instruction which was given to the jury:

Conversion is the unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of the owner’s rights. To entitle the plaintiff to recover, the jury must believe, from the evidence, that the plaintiff was the owner of the property in question, or that he had some special interest therein, which entitled him to possession of the property at the time of the alleged conversion. [Emphasis added].

Although the defendants consistently maintained that no conversion had occurred, the trial transcript reveals that the defendants specifically consented to this instruction regarding the law of conversion. However, on appeal, Zimmerman and Big Z contend that King cannot maintain a conversion action because he cannot prove that Big Z had actually transferred title or ownership of the items in question to King. The crux of their argument is that Big Z had title to the items seized, as was required by state and federal regulations pertaining to the trucking business, and King had no ownership interest in this property.

We disagree. Under the law of conversion, as properly stated in Jury Instruction No. 15, the jury did not have to find that King had absolute ownership of or title to the property in question, but rather that he had an interest in the property which entitled him to possession at the time Connie Zimmerman requested the sheriff to intervene. In this regard, the jury heard extensive testimony concerning the terms of the lease agreement which required King to provide the necessary permits, licenses, and insurance to haul commercial loads; the fact that federal and state regulations required these items to be obtained in Big Z’s name, even though the lease required King to purchase them; Kong’s right to possess these items until the lease was properly terminated, at which time the cost of these items would be prorated and he would be paid back for the unexpired use of these items; the notice required prior to terminating the lease; and the fact that, in accordance with the terms of the lease agreement, King was reimbursing Big Z for these items out of his monthly receipts.

After considering this evidence in the light most favorable to King, including the legitimate inferences which could be drawn from this evidence, we conclude the jury could find that King had an ownership interest in the property in question. Although the evidence was conflicting, there was substantial evidence warranting submission of the issue of conversion to the jury and upon which a jury could base its verdict. Therefore, we conclude that Big Z and Connie Zimmerman were not entitled to a directed verdict on the issue of conversion.

ISSUE 2

Did the District Court err when it refused to grant the defendants’ motion for a directed verdict on the issue of whether Connie Zimmerman was personally liable for conversion of property?

The defendants contend that the court should have granted Connie Zimmerman’s motion for a directed verdict on the issue of whether she can be held personally liable for conversion of King’s property. Zimmerman and Big Z assert that under the corporate shield doctrine the shareholders of a corporation are immune from liability unless special circumstances exist which justify “piercing the corporate veil” in order to reach the shareholders individually. They maintain that Connie Zimmerman acted on behalf of the corporation, in furtherance of corporate goals, and that there is no evidence to justify bringing Zimmerman within the exceptions to the corporate shield doctrine.

King counters by noting that this case did not involve an attempt to pierce the corporate veil in order to get at the assets of the shareholders for payment of a corporate debt. What was pled and tried in this case was whether Connie Zimmerman wrongfully converted King’s property and whether there was a basis to hold her personally liable for her actions. In fact, the jury found that both Big Z and Connie Zimmerman were individually liable for conversion of King’s property. King contends that at no time was the issue whether Connie Zimmerman should be held liable for the corporation’s actions as one of its shareholders. We agree.

The jury was instructed as follows on the issue of personal liability on the part of Connie Zimmerman:

Corporate officers or directors are privileged to interfere with or induce breach of the corporation’s contracts or business relations with others as long as their actions are in good faith and for the best interests of the corporation. Where an officer or director acts against the best interests of the corporation, acts for his own pecuniary benefit, or with intent to harm the plaintiff, he is personally liable. [Emphasis added].

This jury instruction correctly states the law regarding personal liability of a corporate officer or director as set forth by this Court in Phillips v. Montana Education Association (1980), 187 Mont. 419, 610 P.2d 154. See also, Mannix v. Butte Water Company (1991), 249 Mont. 372, 816 P.2d 441; Bottrell v. American Bank (1989), 237 Mont. 1, 773 P.2d 694.

In this instance, the jury heard testimony that Connie Zimmerman, as secretary of Big Z, had intentionally made a false report to the sheriff’s office when she reported that the semi-tractor had been stolen in order to “teach him [King] a lesson.” Furthermore, the jury considered evidence regarding the termination of the lease without warning, and Connie Zimmerman’s actions prior to calling the sheriff’s office. Although this testimony was disputed, the jury resolved the conflicting evidence in favor of King. When such conflicting evidence exists, we do not retry a case because the jury chose to believe one party over another. Simchuk v. Angel Island Community Association (1992), 253 Mont. 221, 833 P.2d 158.

Using the same standard of review set forth in the previous section, we conclude that there was substantial evidence to warrant submitting the issue of personal liability to the jury. After drawing reasonable inferences in favor of King from the evidence presented, we conclude that a jury could logically infer that Connie Zimmerman’s motives were not in the best interests of the corporation or that she had acted with the intent to harm King. We conclude the District Court did not err when it denied Connie Zimmerman’s motion for a directed verdict on the issue of her personal liability.

ISSUE 3

Did the District Court err when it affirmed the jury’s award and assessed punitive damages against Big Z and Connie Zimmerman?

Connie Zimmerman and Big Z contend that punitive damages were improperly assessed against Zimmerman because there was no clear and convincing evidence of malice on her part. Furthermore, the defendants claim the District Court erred when it instructed the jury to consider the nine factors set forth in § 27-l-221(7)(b), MCA, with respect to this issue. They maintain that the court should have given the instruction they offered on punitive damages which was based on the Montana Pattern Jury Instructions, number 25.65.

The jury found that both Big Z and Connie Zimmerman converted King’s property and had acted with actual malice. After the verdict, the court reviewed the award pursuant to § 27-l-221(7)(c), MCA. The court issued findings of fact and conclusions of law related to the amount of punitive damages, and adopted the amount of the jury’s award.

Under § 27-1-221, MCA, reasonable punitive damages may be awarded when a defendant has been found guilty of actual malice. Section 27-1-221(2), MCA, provides:

A defendant is guilty of actual malice if he has knowledge of facts or intentionally disregards facts that create a high probability of injury to the plaintiff and:
(a) deliberately proceeds to act in conscious or intentional disregard of the high probability of injury to the plaintiff; or
(b) deliberately proceeds to act with indifference to the high probability of injury to the plaintiff.

“All elements of the claim for punitive damages must be proved by clear and convincing evidence ... [which] is more than a preponderance of evidence but less than beyond a reasonable doubt.” Section 27-1-221(5), MCA.

A jury award of punitive damages must be reviewed by the district court judge. Section 27-l-221(7)(c), MCA. A district court judge, having heard the evidence and observed the witnesses, is in the best position to determine whether the requirements of proof of punitive damages have been met. Dees, 861 P.2d at 150.

Here, Judge Colberg reviewed the award and concluded the jury correctly assessed punitive damages against Big Z and Connie Zimmerman, based on clear and convincing evidence that “Connie Zimmerman apparently intended to teach plaintiff [King] a lesson” and “[t]he behavior was intentional.” Furthermore, after considering each of the relevant factors in § 27-l-221(7)(b), MCA, the court found that the jury had assessed an appropriate amount of damages against each defendant. In his findings, Judge Colberg carefully articulated how the evidence supported each of the statutorily required considerations for an award of punitive damages. Although the record is replete with conflicting testimony, there is substantial, credible evidence upon which a jury could base a determination that Connie Zimmerman and Big Z acted with malice toward King when a false report of a stolen truck was filed and King’s property was converted.

In addition to rejecting the [Zimmermans’ contention that there was not clear and convincing evidence to support the jury’s verdict, we find no merit in the argument that the judge improperly instructed the jury on the issue of punitive damages. For all practical purposes, the differences between the proposed instruction and the given instruction, which was based on § 27-1-221, MCA, are negligible.

When we review a district court’s refusal to give an offered jury instruction, the following rules apply :

It is not reversible error for a trial court to refuse an offered instruction unless such refusal affects the substantial rights of the party proposing the instruction, thereby prejudicing him.
A party in not prejudiced by a refusal of his proposed instructions where the subject matter of the instruction is not applicable to the pleadings and facts, or not supported by the evidence introduced at trial, or the subject matter is adequately covered by other instructions submitted to the jury. [Citations omitted].

Cottrell v. Burlington Northern (1993), 261 Mont. 296, 306, 863 P.2d 381, 387.

In this case, the instruction given to the jury was substantially the same as that offered by the defendants. We cannot conclude that the defendants’ rights were affected by the court’s decision to instruct the jury as it did.

We conclude the court did not err when it adopted the jury’s verdict and assessed punitive damages against Big Z and Connie Zimmerman.

ISSUE 4

Did the District Court abuse its discretion when it allowed into evidence an audio taped deposition of a witness for the plaintiff?

At trial, over the defendants’ objection, the District Court allowed an audio taped deposition of plaintiff’s witness, Greg Ramey. The basis for the objection was that the Montana rules regarding taped depositions had not been followed and that the deposition had been taken after the discovery cutoff deadline had passed. Rule 30(h)(4), M.R.Civ.R, sets forth the rules for video taped or audio taped depositions, and the defendants contend these rules were not complied with because the operator’s name and business address were not stated on the taped part of the deposition; the tape was not indexed by a time generator or other adequate indexing device; and the original audio tape was not filed with the clerk of court. The defendants maintain these rules are mandatory and because they were not followed, the tape should not have been allowed.

The determination of the admissibility of evidence is within the broad discretion of the trial court, and we will not disturb the court’s ruling absent a manifest abuse of this discretion. Jacobsen v. State (1989), 236 Mont. 91, 94, 769 P.2d 694, 695.

In this instance, the court allowed admission of the audio taped deposition despite the fact that certain requirements set forth in Rule 30(h), M.R.Civ.R, were not fully complied with. After reviewing the record, however, we conclude that there was no prejudice to the defendants resulting from the defects alleged. On this basis, we find no grounds to hold that the tape was inadmissible.

The procedural requirements of Rule 30(h), M.R.Civ.R, insure the accuracy and proper identification of a taped deposition. Here, however, the accuracy of the taped deposition was never challenged. The objections raised during the trial went to substantive issues which were discussed by Ramey, and the defendants were afforded adequate opportunities during the trial to object and excise specific portions of Ramey’s testimony. These portions of the tape were never heard by the jury. Furthermore, the objection that the tape did not technically comply with the rule was not raised until the day of trial, even though the deposition had been taken and was transcribed prior to this time. If the accuracy of the tape was genuinely questioned, this problem could have been brought to the court’s attention prior to the day of trial.

We conclude that the District Court did not abuse its discretion when it allowed into evidence the audio taped deposition of Ramey.

ISSUE 5

Did the District Court abuse its discretion when it allowed King to introduce evidence in support of claims which the defendants contend were not raised in the pretrial order?

The defendants finally contend that the District Court erred when it allowed plaintiff to present evidence at trial regarding issues of fact and law not set forth in the pretrial order. Specifically, they contend that breach of contract, breach of the covenant of good faith, conversion, and malice were not listed as issues. Also, punitive damages were not listed in the legal issues to be addressed. The defendants rely on Zimmerman v. Robertson (1993), 259 Mont. 105, 854 P.2d 338, for the proposition that testimony regarding issues that are not contained in the pretrial order is irrelevant and inadmissible.

The purpose of pretrial orders is to prevent surprise, simplify the issues, and permit counsel to prepare their case for trial on the basis of the pretrial order. Zimmerman, 854 P.2d at 342. In Zimmerman, under the unique facts present in that case, we held that permitting the introduction of a new factual matter which had never been raised in any of the pleadings, but rather was first raised during trial, would undermine the purposes pretrial orders are intended to serve. Here, however, after reviewing the pretrial order, we find the defendants’ arguments without merit. The pretrial order adequately sets forth all of King’s contentions as contained in the initial pleadings. Furthermore, no theories were advanced at trial which had not already been well established in the pleadings. There is no basis for the defendants to claim that they were “surprised” by the issues raised and had not been able to prepare for trial.

The District Court did not abuse its discretion in this regard.

The judgment of the District Court is affirmed.

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


author: JUSTICE NELSON

text:
    IN RE THE MARRIAGE OF KAYLA COX, Petitioner/Respondent, and JERRY COX, Respondent/Appellant.
    No. 93-418.
    Submitted on Briefs June 16, 1994.
    Decided August 5, 1994.
    51 St.Rep. 672.
    266 Mont. 67.
    878 P.2d 903.

      For Appellant: Richard J. Carstensen, Attorney Pro Bono, Billings.
    For Respondent: R. V. Bottomly, Great Falls.
   JUSTICE NELSON

delivered the Opinion of the Court.

Jerry Cox, Appellant before this Court, and Respondent in the District Court dissolution proceedings below (Jerry or Respondent), appeals an order of the Eighth Judicial District Court, Cascade County, dismissing without a hearing his motions regarding visitation, support, and motion for a temporary restraining order. Jerry also appeals the court’s inclusion in its dismissal certain rulings regarding child support, costs and attorney fees, and conditions as to visitation. We reverse and remand for further proceedings consistent with this opinion.

Jerry raises two issues on appeal:

1. Did the District Court err in denying Respondent a hearing on his motions to modify visitation, child support, and motion for a temporary restraining order?
2. Did the District Court err by including various rulings in its Order of Dismissal relative to child support, attorney fees and costs, and conditions as to visitation when it did not hear any evidence concerning the rulings.

This action began as a dissolution proceeding in June of1988, when Kayla Cox (Kayla or Petitioner), filed a Petition for Dissolution. A Final Decree of dissolution was filed on March 8, 1989. The decree awarded Jerry visitation rights and ordered him to pay child support for the parties’ two minor children.

In the spring of 1990 Jerry became disabled and applied for Social Security benefits. In October of 1992, he was awarded Social Security disability benefits, retroactive to April 1990. On November 12, 1992, Kayla had a Writ of Execution levied upon the Social Security Administration to secure past due child support, medical care and attorney fees for the sum of $26,815.52. The writ required that Jerry’s obligation for past due child support be satisfied from past-due Social Security benefits which were payable to Jerry in a lump-sum. The writ also required the Social Security Administration to withhold $300.00 per month from future disability payments made to Jerry to satisfy the payment of the monthly child support provided for in the decree.

On March 1, 1993, Jerry moved the court for a modification of visitation and support, and moved the court to issue a temporary restraining order restraining Kayla from executing upon his Social Security benefits until a hearing could be held concerning how the Social Security benefits should be distributed. On May 17, 1993, Kayla moved to dismiss Jerry’s motion for modification on the grounds that Jerry had no standing to request any relief, because according to Kayla, he had refused to comply with any prior court order connected to the dissolution and subsequent proceedings.

The parties appeared before the Honorable Thomas McKittrick on May 27,1993. Kayla was represented by counsel, and Jerry appeared pro se. After hearing argument from Kayla’s counsel supporting her motion to dismiss, and Jerry’s response to the argument, the District Court dismissed the motion to modify without allowing either party to present any evidence in support of their motions.

The District Court reduced to writing its ruling granting Kayla’s motion to dismiss in an order dated June 11, 1993. Included in the Order of Dismissal were the following rulings: (1) the lump sum Social Security benefits had been attached by the Writ of Execution and so that issue was moot; (2) the lump sum Social Security benefits were insufficient to fulfill Jerry’s past due child support obligation, and therefore he was still in default of his obligation to pay child support and other liabilities imposed under the decree in the amount of $11,197.96; (3) that the court would not modify visitation or child support until Jerry complied with orders of the court and until he paid in full his past child support obligation, attorney fees and costs. The District Court also made additional rulings as to visitation and ordered Jerry to fulfill certain conditions, such as attend psychological testing and undergo a home environment study, before the court would modify visitation.

I. FAILURE TO PROVIDE A HEARING

The first issue Jerry raises on appeal concerns whether the District Court erred in denying him a hearing on his motions to modify. Jerry argues that before the District Court can dismiss his motions, he is entitled to a hearing where he can present evidence to support his motions.

The standard for this Court in reviewing discretionary trial court rulings is whether the trial court abused its discretion. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603-04. While acknowledging the frustration of the District Court (and of opposing counsel), as evidenced by the record, we, nevertheless, conclude that the court’s rulings at issue here were an abuse of discretion.

A. CHILD SUPPORT

Jerry argues that the District Court erred when it denied him the opportunity to present evidence in support of his motion to modify child support. Child support provided for in a decree may be modified “upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.” Section 40-4-208(2)(b)(i), MCA. Accordingly, it is essential that an evidentiary basis support any finding that it either would or would not be unconscionable to continue the child support payments set forth in the decree. Gall v. Gall (1980), 187 Mont. 17, 20, 608 P.2d 496, 498.

In the instant case there was no evidentiary basis for the District Court’s dismissal of Jerry’s motion to modify. The District Court summarily dismissed the motion without providing Jerry the opportunity to present any evidence. According to the statutory language, Jerry was entitled to make a showing of changed circumstances. We therefore hold that the court abused its discretion in denying Jerry this opportunity.

Kayla argues that Jerry does not come to the court with clean hands as he did not voluntarily make his child support payments. Therefore, according to Kayla, the District Court had the equitable power to dismiss Jerry’s motions without providing a hearing. While we recognize the principle that one seeking equity must do equity, and that the nonpayment of child support is inequitable, our statutes do not require that child support obligations be current, before a party petitions for modification. Section 40-4-208, MCA; In re the Marriage of Carlson (1984), 214 Mont. 209, 214, 693 P.2d 496, 499.

B. VISITATION

Jerry also contends the District Court erred in dismissing his motion for modification of visitation without providing him a hearing on the motion. According to § 40-4-217(3), MCA, a visitation order may be modified “whenever modification would serve the best interest of the child.” This Court has previously held that this section contemplates the trial court hold a visitation hearing and issue findings that modification would be in the child’s best interest. Strong v. Weaver (1984), 211 Mont. 320, 321-22, 683 P.2d 1330, 1331.

In the instant case the District Court did not hold a visitation hearing. In addition, the District Court made the following finding in support of its order dismissing Jerry’s motion to modify visitation:

The Court sees no reason to make any changes respecting visitation or to modify child support obligations. The Respondent is not in any position to request such assistants [sic] from the Court until such time as the Respondent gets into compliance with the Orders of the Court and establishes a course of action that would demonstrate an interest in visiting his children and seeing to it that the past due child support obligation is paid in full and to pay attorneys fees and costs required to bring him into compliance with the Court’s Order.

It is apparent from court’s order that the court conditioned modification of the visitation arrangements set forth in the decree upon Jerry’s compliance with his child support payments. This ruling was in error. See, In re the Marriage of Harper (1988), 235 Mont. 41, 46-47, 764 P.2d 1283, 1286; and State ex rel. Dewyea v. Knapp (1984), 208 Mont. 19, 22, 674 P.2d 1104, 1106, affirmed in Matter of Adoption of K.L.J.K (1986), 224 Mont. 418, 421, 730 P.2d. 1135, 1137. Section 40-4-109, MCA, provides that visitation and support are independent of each other. See also, § 40-5-124, MCA (1991), in effect at the time of the court’s rulings. Therefore we hold that the District Court erred in dismissing Jerry’s motion to modify visitation without holding an evidentiary hearing.

II. INCLUSION OF ADDITIONAL RULINGS

The second issue Jerry raises on appeal concerns whether the District Court erred by including various rulings in its Order of Dismissal relative to child support,; conditions as to visitation, and attorney fees and costs, when it did not hear any evidence concerning the rulings.

A. CHILD SUPPORT

Jerry contends that it was error for the District Court to make a finding that he owed past due child support and other liabilities imposed under the original decree ihthe amount of $11,197.96, when no evidence supporting that determination was presented to the court. It appears from the record that the District Court simply adopted the arrearage figure set forth in Kayla’s brief and included that figure in its Order of Dismissal, when it found Jerry was liable for $11,197.96 in unpaid child support and other liabilities imposed under the original decree.

This Court has previously held that a trial court cannot base child support upon speculation. Duffey v. Duffey (1981), 193 Mont. 241, 244, 631 P.2d 697, 699. (Citation omitted.) In the instant case the District Court did not hear evidence from either party as to the amount of child support arrearage. Because no evidence was presented supporting its determination of the amount of child support arrearage, we hold that the District Court’s conclusion that a portion of the $11,197.96 was due for past due child support, was speculative and should not have been included in the Order of Dismissal. Similarly, no evidence was presented demonstrating the amount of other obligations Jerry is allegedly responsible for according to the terms of the original decree.

B. VISITATION

In its Order of Dismissal, the District Court ruled that it would not modify Jerry’s visitation rights until he had fulfilled the following conditions: (1) have a home environment study conducted at his expense; (2) undergo psychological testing; (3) communicate his visitation requests directly to Kayla, and not the children; and (4) give sufficient advance notice of an agreeable time and place of visitation before it could take place. Jerry alleges it was error for the District Court to include conditions as to visitation in its order when he was not given the opportunity to testify or present evidence on the visitation issue. We agree.

Section 40-4-217(3), MCA, provides that a court may modify an order granting or denying visitation rights whenever it finds modification would serve the best interests of the child. See also, In re the Marriage of Firman (1980), 187 Mont. 465, 468, 610 P.2d 178, 180.

While in order to intelligently and fairly rule on a parent’s motion to modify visitation, the court may need to develop the evidentiary record with the sort of information contemplated by (1) and (2) of the court’s order, and while, on the basis of the evidentiary record before the court, it may ultimately be appropriate for the court to condition visitation with the sorts of requirements contemplated by (3) and (4), it is equally clear that such requirements and conditions can be imposed in connection with a parent’s motion to modify visitation only on the basis of evidence developed in conjunction with a visitation hearing or hearings of which the parties have appropriate notice and opportunity to testify. Moreover, such conditions and requirements may be imposed only if doing so would serve the children’s best interests. Strong v. Weaver, 683 P.2d at 1331; In re the Marriage of Firman, 610 P.2d at 180.

We hold that the District Court erred by imposing the referenced conditions and requirements without affording Jerry the opportunity for a hearing on his motion and without determining that such conditions and requirements would serve the best interests of the children.

C. ATTORNEY FEES AND COSTS

The District Court awarded Kayla attorney fees and costs in conjunction with her attempt to secure child support payments. Jerry alleges it was error to include the award of attorney fees in the Order of Dismissal when he was not given the opportunity to present evidence to refute the claim. Again, we agree.

It is clear that a court may in its discretion, after considering the financial resources of both parties, award attorney fees incurred by a party in maintaining or defending a proceeding to secure child support payments. See, § 40-4-110, MCA. Moreover, this Court will not disturb the award of attorney fees if it is supported by substantial evidence. In re the Marriage of Barnard (1990), 241 Mont. 147, 154, 785 P.2d 1387, 1391-92. The evidence presented must demonstrate that the attorney fees and costs are reasonable. In re the Marriage of Aanenson (1979), 183 Mont. 229, 236, 598 P.2d 1120, 1124. To make the showing, a hearing must be held allowing for oral testimony, introduction of exhibits, and an opportunity to cross-examine in which the reasonableness of the attorney fees claimed is demonstrated. In re the Marriage of Aanenson, 598 P.2d at 1124.

In the instant case the District Court did not hear any evidence concerning attorney fees. In fact, the issue was never raised at the May 27th hearing. We hold that the District Court erred in awarding attorney fees and costs to Kayla when it did not hear any evidence concerning the necessity for or reasonableness of the award.

In summary, while the sorts of rulings which the court made in this case may be proper if supported by a record developed on the basis of an evidentiary hearing and bn due consideration of applicable statutory criteria, it was error fop the court to make such rulings without an evidentiary hearing and without providing the parties adequate opportunity to testify and present evidence.

Underlying the court’s rulings in this case is its apparent frustration with Respondent’s failure to comply with prior court orders. On that basis, Kayla argues in her brief that the District Court’s rulings were proper under Rule 41(b), M.R.Civ.R That rule provides for involuntary dismissal of an action for, among other things,"... failure of the plaintiff... to comply with... any order of [the] court.” Aside from the fact that Kayla’s motion to dismiss Jerry’s motion to modify did not refer to Rule 41(b), and is, thus, argued for the first time on appeal, we have held that "... dismissal under Rule 41(b), M.R.Civ.R is a harsh remedy. Because the result is severe, courts should refrain from dismissing an action or claim unless there is no other adequate remedy available and where the facts sufficiently call for such a result.” Chisholm v. First Nat. Bank of Glasgow (1988), 235 Mont. 219, 220, 766 P.2d 868, 869. In this case there is another adequate remedy available to the court in the event that Respondent wrongfully fails or refuses to abide by the court’s orders — namely contempt. Section 40-4-201(5), MCA; see, In re the Marriage of Robbins (1985), 219 Mont. 130, 711 P.2d 1347.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

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


text:
    IN RE THE MARRIAGE OF NANCY JOSEPHINE SCHARA, Petitioner/Appellant, and JOHN LEE SCHARA, Respondent/Respondent.
    No. 93-478.
    Submitted on Briefs May 19, 1994.
    Decided August 5, 1994.
    51 St.Rep. 676.
    266 Mont. 76.
    878 P.2d 908.

      For Appellant: Bruce E. Lee, Billings.
    For Respondent: Kent E. Young, Red Lodge.
   JUSTICE NELSON

delivered the Opinion of the Court.

This action is before the Court on the former Nancy Josephine Schara’s (Petitioner or Nancy) appeal from an order denying her “Motion to Construe and Enforce Decree.” The Thirteenth Judicial District Court, Carbon County, determined that the lump sum maintenance allowance awarded to Nancy in the Final Decree of Dissolution of Marriage (decree) terminated upon her remarriage. We reverse and remand.

The issue is whether the lump sum maintenance obligation awarded to Nancy in the decree terminated upon her remarriage.

Nancy began this action by filing a Petition for Dissolution of her marriage from John Schara (Respondent or John) in the Thirteenth Judicial District Court, Carbon County. A Final Decree of Dissolution was signed by the Honorable G. Todd Baugh on August 11,1989. The decree contained the following property settlement and maintenance provisions:

5. That the property of the parties be and it is hereby, distributed between the parties as follows:... Respondent is hereby ordered to pay the sum of $42,000.00 to Petitioner in a lump sum as soon as his [sic] is able to refinance the family home set over to him.
6. That the Respondent be, and he is hereby, ordered to pay the sum of $8,000.00 to Petitioner for her care, support and maintenance either as a lump sum if he is able to secure sufficient funds from refinancing the family home to pay said sum or at the rate of $160.00 per month for a period of 50 months, without interest.
7. That the Respondent be, and he is hereby, ordered to pay the sum of $1,000.00 to the Petitioner each month until he is able to refinance the family home, said sum constituting child support and spousal maintenance, [sic] His obligation for to pay [sic] the Petitioner the sum of $8,000.00 in maintenance shall be reduced by $460.00 for each month during which he pays said sum to Petitioner.

On February 20, 1990, John refinanced the family home, borrowing $30,000.00, the maximum amount the lender would allow. After paying the underlying encumbrances and closing costs, John received the loan balance of $7,678.69.

The parties agree John made the following payments to Nancy:

Date Amount
08/16/89 254.64
08/16/89 230.16
09/15/89 460.00
10/15/89 460.00
11/14/89 460.00
12/14/89 24,460.00
01/15/90 460.00
02/25/90 16,175.20
06/16/90 160.00
08/31/90 75.00
10/15/90 85.00
Total Paid $43,280.00

Nancy remarried on March 30, 1990. On October 5, 1992, Nancy filed a “Motion to Construe and Enforce Decree,” asking the District Court to determine whether John’s obligation of maintenance terminated upon her remarriage. In her supporting brief, Nancy argued that paragraph six of the decree was actually a property distribution provision.

By written order dated June 8, 1993, the Honorable William J. Speare denied the motion, finding that paragraph six of the decree was a maintenance provision and not a property distribution provision. The District Court also found that John’s obligation to pay maintenance terminated upon Nancy’s remarriage, and that John had paid in full any maintenance obligation accruing before Nancy’s remarriage. Nancy appeals from this order.

STANDARD OF REVIEW

This Court will review a district court’s conclusion of law to determine whether the district court’s interpretation of the law was correct. In re the Marriage of Burris (1993), 258 Mont. 265, 269, 852 P.2d 616, 619. (Citation omitted).

LUMP SUM MAINTENANCE

It should be noted initially that on appeal Nancy did not raise the issue concerning the District Court’s finding paragraph six of the decree to be a maintenance provision as opposed to a property distribution provision. Therefore, oh appeal we will proceed with and assume as correct the District Court’s conclusion that paragraph six of the decree is a maintenance provision.

John argues that absent special reasons or circumstances, the court should not award lump sum maintenance. While the issue on appeal is whether such maintenance, if awarded, terminates on remarriage, we will first address John’s argument against the validity of an award of lump sum maintenance in the first place.

John relies on 24 Am. Jur. 2d, Divorce and Separation § 635 (1983), for the proposition that:

Ordinarily, in the absence of express statutory authorization or the consent of the parties, a court cannot award alimony in a gross sum in lieu of a periodical allowance.

Although our statutes do not make any specific provision for the award of lump sum maintenance payments, neither do they specifically prohibit such an award. Moreover, this Court has upheld the award of lump sum maintenance payments. See for example, In re the Marriage of Weed (1992), 254 Mont. 162, 168, 836 P.2d 591, 594.

John also relies on our decision in Stefonick v. Stefonick (1946), 118 Mont. 486, 167 P.2d 848, to support his position that periodic maintenance is preferable to lump sum maintenance. Stefonick sets forth two reasons why a lump sum should not be awarded. First, because maintenance is intended for the wife’s support, a lump sum award may not reflect her continuing need, so that the wife may have a benefit of too great an award if she remarries, or acquires other income or property. Second, by awarding a lump sum, the court may have the power to increase the award if necessary, but the court deprives itself of the power to reduce the award. This Court reasoned in Stefonick that if possible the court should retain its power to modify the alimony provision either way. Stefonick, 167 P.2d at 855-56.

While, as we indicated in Stefonick, it may provide greater flexibility to the district court in terms of future modifications of a maintenance decree to award periodic versus lump sum maintenance, we also find no basis on which to prohibit such an award, if, in its discretion, the District Court determines that such an award both fulfills the statutory criteria set forth in § 40-4-203, MCA, and best meets the recipient’s needs under the particular facts of the case at issue.

Having concluded that it was acceptable for the District Court to award Nancy lump sum maintenance, we next determine whether John must pay the outstanding balance of the lump sum in light of Nancy’s remarriage.

Nancy argues that John was ordered to pay her a lump sum certain in maintenance. She contends that maintenance in gross, or lump sum maintenance, is a vested right which does not terminate upon remarriage, regardless of whether the sum is to be paid in gross or in periodic payments.

This Court has never addressed the specific issue of whether a lump sum maintenance award terminates upon the recipient’s remarriage. However, in Jones v. Flasted (1976), 169 Mont. 60, 544 P.2d 1231, we examined the issue of whether a settlement agreement which provided maintenance for a period of twenty years terminated upon the recipient’s death. In that case we held that because the agreement to provide maintenance was personal to the wife, it terminated upon her death. Jones, 544 P.2d at 1235. In the instant case, however, Nancy, not her estate, would receive the outstanding balance of the maintenance award. This case is, therefore, distinguishable from Jones.

We find guidance on the specific issue raised by Nancy in 24 Am. Jur. 2d, Divorce and Separation § 635 (1983), which provides:

Alimony in gross, or lump-sum alimony, is fundamentally the award of a definite sum of money; and if the sum is payable in installments the payments run for a definite length of time. The sum is payable in full, regardless of future events such as the death of the obligor spouse or the remarriage of the dependent spouse. Gross alimony becomes a vested right from the date of rendition of the judgment, and the manner of its payment in no way affects its nature or effect. That the award is payable in installments is not determinative of the question whether it is gross alimony or periodic alimony. On the other hand, alimony orders generally contemplate periodic payments of a definite sum for the indefinite future, and terminate on the death of either party or the remarriage of the dependent spouse.

Section 40-4-208(4), MCA, governs the obligation to pay future maintenance upon a party’s remarriage. That section provides:

Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.

The Nevada Supreme Court in its decision Kishner v. Kishner (Nev. 1977), 562 P.2d 493, directly addressed the question at issue in this case and interpreted its own statute which is similar to Montana’s. In Kishner, the husband was ordered to pay his wife lump-sum maintenance, to be paid in periodic payments over a period of eleven years. Kishner, 562 P.2d at 494. Upon the wife’s remarriage, the wife moved the district court for a determination regarding what effect if any, her remarriage had on the ex-husband’s obligation to pay maintenance, according to the provision in the judgment and decree. Kishner, 562 P.2d at 494. At the time of the wife’s remarriage, Nevada’s statute providing for the allowance of maintenance provided:

4. In the event of the death of either party or the subsequent remarriage of the wife, all alimony awarded by the decree shall cease, unless it shall have been otherwise ordered by the court.

Kishner, 562 P.2d at 495.

The district court held that the maintenance provision in the judgment and decree was ambiguous. The court nonetheless upheld the maintenance award, finding that it was allowable because the court had “otherwise ordered” the maintenance award. The husband appealed this ruling. The Nevada Supreme Court affirmed the district court and stated:

“Obviously, the purpose of both the court and the parties, in providing for or in accepting a gross allowance of alimony, is to define and fix with finality the scope of the rights and the obligations of the parties. In this case, it was designed to set the limits of the wife’s right to alimony, and we have no doubt that the husband would have cushioned himself on the doctrine of vested rights, if the wife had attempted to institute proceedings to increase the amount. Without discussing the matter further, it is our view that an unqualified allowance in gross, in a divorce decree, whether payable immediately in full or periodically in installments, and whether intended solely as a property settlement or as an allowance for support, or both, is such a definite and final adjustment of mutual rights and obligations as to be capable of a present vesting and to constitute an absolute judgment ... If the judgment in this case was intended to be subject to a defeasance in case of the wife’s remarriage [or death] it was necessary, since a vested right was involved, to have provided for such defeasance in the decree.”

Kishner, 562 P.2d at 495-96, citing, Ziegenbein v. Damme (Neb. 1940), 292 N.W. 921.

We find this reasoning persuasive. In the instant case, the District Court awarded maintenance in gross payable in a lump sum or, alternatively, in installments and without provision for defeasance on Nancy’s remarriage. In doing so, the court, under § 40-4-208(4), MCA, “expressly provided in the decree” that John’s obligation to pay the entire maintenance award would survive Nancy’s remarriage. Accordingly, we hold that Nancy’s right to receive the entire lump sum maintenance award vested in her on entry of the decree, and must be paid by John in accordance with the terms of the decree, regardless of Nancy’s remarriage. 1

According to the decree John was ordered to pay Nancy $42,000.00 as part of the property settlement distribution, and a lump sum maintenance award of $8,000.00. The parties have agreed that John has paid Nancy $43,280.00. We conclude that John now owes Nancy $6,270.00 as the following calculations indicate:

Total Paid (stipulated figure) $43,280.00
Less property settlement 42,000.00
Total maintenance paid $1,280.00
Maintenance obligation per final decree $8,000.00
Less maintence paid (1,280.00)
Maintenance owing $6,720.00

Because John has already refinanced the family home, paragraph seven is inapplicable as it concerns the payment amount to be made prior to refinancing the family home. Therefore, we hold that John must pay the balance of $6,720.00 owing to Nancy as a lump sum.

REVERSED AND REMANDED FOR FURTHER PROCEEDING CONSISTENT WITH THIS OPINION.

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


text:
    DEBRA STINE, Petitioner and Appellant, v. WESTERN FEDERAL SAVINGS BANK, MONTANA DEPARTMENT OF LABOR AND INDUSTRY, and the MONTANA BOARD OF LABOR APPEALS, Respondents and Respondents.
    No. 94-201.
    Submitted on Briefs July 26, 1994.
    Decided August 16, 1994.
    51 St.Rep. 746.
    266 Mont. 83.
    879 P.2d 53.

      For Appellant: Larry W. Jones, Attorney at Law, Missoula.
    For Respondents: Ronald A. Bender; Worden, Thane & Haines, Missoula (for Western Federal Savings Bank); Robert J. Campbell, Special Assistant Attorney General,^elena (for Department of Labor and Industry and Board of Labor Appeals).
   JUSTICE GRAY

delivered the Opinion of the Court.

Debra Stine appeals from an order of the Fourth Judicial District Court, Missoula County, affirming the Board of Labor Appeals’determination that she was disqualified from receiving unemployment insurance benefits based on employee misconduct. We affirm.

Ms. Stine was employed by the Western Federal Savings Bank of Montana (Western Federal) from August 27, 1979, to January 13, 1993. During all times pertinent to this action, Western Federal had in place an overdraft policy which required employees to maintain a positive balance in any Western Federal account. In the event of an overdraft, employees were required to bring the account to a positive balance by the following business day. If the account were overdrawn three days within any given month, the employee’s supervisor would be contacted and a reprimand placed in the employee’s personnel file. Finally, the policy provided that additional disciplinary action may be taken if the employee fails to maintain the account in a professional manner.

Ms. Stine’s problems with her account began in June of 1991, when her balance fell below zero on June 3, 4 and 11. In accordance with the overdraft policy she was given a letter of reprimand. The letter instructed Ms. Stine, to “refer to the attached checking policy copied from your employment manual,” and to read, sign, date and return the letter. Ms. Stine wrote a note on the bottom of the letter indicating that her failure to keep track of her deposits and withdrawals was the result of being “sick with lupus.”

The second incident occurred in September of 1992, when Ms. Stine’s account showed a negative balance on September 2, 8 and 9. In this instance, Ms. Stine’s supervisor photocopied Western Federal’s policy on overdrafts and added a handwritten note at the bottom indicating that “if any more overdrafts occur additional disciplinary action may be taken which could include termination.” Ms. Stine read and signed this photocopy, including the handwritten note; the photocopy was then placed in her personnel file. Ms. Stine did not mention a medical problem to her supervisor during this incident.

The final incident occurred in January of 1993, when Ms. Stine carried a negative balance on January 5, 6 and 11. She received a written reprimand in the form of a memorandum stating that Western Federal was considering termination based on her failure to properly maintain the account. Ms. Stine responded with a handwritten explanation that she had failed in her recordkeeping. No medical excuse or justification was mentioned. On January 13,1993, Western Federal terminated Ms. Stine’s employment after she failed to remedy the negative balance as required by the policy and further overdrafts occurred on January 12 and 13.

Following her termination, Ms. Stine filed a claim for unemployment insurance benefits with the Unemployment Insurance Division of the Department of Labor and Industry (Department). A claims specialist determined that she was disqualified from receiving benefits because she was discharged for cause associated with her violation of the overdraft policy. Her request for redetermination was denied. Following procedural difficulties not at issue here, Ms. Stine’s claim was scheduled for a hearing on appeal before a Department referee.

The referee ultimately affirmed the determination, finding that Ms. Stine had been discharged for failure to comply with Western Federal’s policy on overdrafts and that her actions constituted misconduct under § 39-51-2303, MCA. The referee further found that Ms. Stine’s assertion that the account overdrafts were the result of a medical condition was not supported by the record.

Ms. Stine appealed to the Board of Labor Appeals (Board) which, failing to find any substantial evidence to warrant modification or reversal, adopted the referee’s findings of fact and decision. On judicial review, the District Court affirmed the Board’s decision. Ms. Stine appeals. ;

The issue before us is whether the District Court erred in determining that substantial evidence supports the Board’s findings of fact.

A district court’s review of a decision of the Board of Labor Appeals is limited by § 39-51-2410(5), MCA, which provides:

In any judicial proceeding under 39-51-2406 through 39-51-2410, the findings of the board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of said court shall be confined to questions of law.

A finding is supported by evidence if it is supported by substantial evidence. Substantial evidence is more than a scintilla of evidence, but it may be less than a preponderance of the evidence. Reynolds v. Pacific Telecom, Inc. (1993), 259 Mont. 309, 314, 856 P.2d 1365, 1368. Under § 39-51-2410(5), MCA, a district court is not permitted to balance conflicting evidence in support of and in opposition to the Board’s findings, determine which is the more substantial evidence, or consider where the preponderance of the evidence lies; to do so would substitute the district court’s ¡view of the evidence for that of the Board, effectively nullifying the conclusive nature of the Board’s findings. Reynolds, 856 P.2d at 1368.

This Court’s review of the Board’s findings is governed by the same standard. Zimmer-Jackson v. Dept. of Labor (1988), 231 Mont. 357, 360, 752 P.2d 1095, 1098. Therefore, we review the record to determine whether substantial evidence supports the Board’s findings.

Ms. Stine challenges the Board’s general finding that her failure to maintain her account, under these circumstances, amounted to misconduct which disqualifies her from receiving unemployment benefits. Specifically, the Board found that “the claimant’s actions must be interpreted as a deliberate, intentional or wanton disregard of the employer’s interest or of the standards of behavior the employer has the right to expect of an employee.”

In Montana, an employee may be disqualified for unemployment insurance benefits after discharge for “misconduct connected with the individuals’s work or affecting the individual’s employment.” Section 39-51-2303(1), MCA. Misconduct, as defined by § 24.11.460(1), ARM, includes conduct by the claimant evincing:

(a) willful or wanton disregard of the rights, title, and interests of a fellow employee or the employer; (b) deliberate violations or disregard of standards of behavior which the employer has the right to expect of an employee; (c) carelessness or negligence that causes or would likely cause serious bodily harm to the employer or fellow employee; or (d) carelessness or negligence in such a degree as to show an intentional or substantial disregard for the employer’s interest.

In addition, § 24.11.461(f), ARM, provides that violation of a company rule may, if the rule is reasonable and the claimant knew or should have known of the existence of the rule, be considered misconduct because it signifies a willful and wanton disregard of the rights, title and interests of the employer or a fellow employee. In this regard, Ms. Stine’s reliance on Connolly v. Montana Bd. of Labor Appeals (1987), 226 Mont. 201, 734 P.2d 1211, for this Court’s definition of what constitutes misconduct under § 39-51-2303, MCA, is misplaced. Connolly was decided prior to the 1988 promulgation of the definitional regulations implementing § 39-51-2303, MCA. These regulations became effective, January 1, 1989, were relied on by the Board and the District Court in this case, and have not been challenged here.

Ms. Stine testified that she was aware of Western Federal’s policy regarding overdrafts on employee accounts and, in fact, issued numerous overdrafts leading to three reprimands by Western Federal. Her own testimony provides ample support for the Board’s finding that her conduct constituted a deliberate disregard of the employer’s interest or of the standards of behavior the employer has the right to expect of an employee.

Ms. Stine argues, however, that an ongoing medical condition prevented her from complying with the overdraft policy. She contends that her actions are not intentional or deliberate and do not rise to the level of misconduct we have required in order to disqualify a person from receiving unemployment insurance benefits.

In LaVe v. Dept. of Labor & Industry (1989), 239 Mont. 339, 780 P.2d 189, we considered whether negligent failure to replace oil in the crankcase of a customer’s automobile constituted “misconduct” under Montana law. We determined that the employee’s single act of negligence did not manifest sufficient disregard of the employer’s interest to constitute misconduct. LaVe, 780 P.2d at 192. Contrasting the situation in LaVe with her own conduct, Ms. Stine argues that because her actions resulted from a medical condition over which she has little, if any, control, they do not even rise to the level of negligence in LaVe.

In this latter regard, the record reflects that Ms. Stine did not advise Western Federal that her medical problems caused the September 1992, and January 1993 incidents; nor would she offer any explanation for the increased activity in her checking account in December of 1992, and January of 1993, which led to her numerous overdrafts. This record led to the referee’s determination that Ms. Stine had failed to establish that her repeated violations of Western Federal’s policy were the result of her medical condition. Moreover, LaVe provides no supportfor Ms. Stine. It concerned a situation where the employee had engaged in a single negligent act. LaVe, 780 P.2d at 192. Here, Ms. Stine repeatedly violated Western Federal’s overdraft policy.

Ms. Stine also argues that Western Federal’s post-termination payment of severance benefits demonstrates that her conduct was not intentional and, therefore, does not rise to the level of misconduct. This argument and, indeed, Western Federal’s payment of severance benefits are irrelevant to the issue before us. Western Federal’s policy on severance pay did not require payment of severance benefits to Ms. Stine, and its willingness to provide these benefits based on Ms. Stine’s length of service does not relate to our review of the Board’s decision.

We conclude that substantial evidence supports the Board’s finding that Ms. Stine’s repeated violation of the overdraft policy manifests a deliberate, intentional or wanton disregard of the employer’s interest or of the standards of behavior the employer has the right to expect of an employee. We hold, therefore, that the District Court did not err in affirming the Board’s findings.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, NELSON and WEBER concur.


text:
    MONTANA DEPARTMENT OF REVENUE, Respondent and Appellant, v. ALLAN K. DRAY, Petitioner and Respondent.
    No. 93-588.
    Submitted June 28, 1994.
    Decided August 18, 1994.
    51 St.Rep. 756.
    266 Mont. 89.
    879 P.2d 651.

      For Appellant: Lawrence G. Allen, Tax Counsel, State of Montana, Department of Revenue, Helena.
    For Respondent: James P. Sites and Scott M. Heard, Crowley, Haughey, Hanson, Toole & Dietrich, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Allan K. Dray petitioned the District Court for the First Judicial District in Lewis & Clark County for judicial review of an order of the State Tax Appeal Board which affirmed the Department of Revenue’s (DOR) assessment of taxes, penalties, and interest against Dray. The District Court granted the petition for judicial review and reversed the decision of the State Tax Appeal Board. The DOR appeals the order of the District Court. We affirm the District Court.

The following issue is presented on appeal:

According to Montana’s tax code, ¡may a nonresident taxpayer deduct alimony payments from income earned in Montana to arrive at Montana adjusted gross income?

The parties agree that there are no disputed facts in this case. They have stipulated to the following facts: Dray is a Texas resident who reported income from Montana sources, including royalty income and income from agricultural property locáted in Montana, for the years 1984 through 1988. In 1984, Dray and his wife, a nonresident of Montana, entered into a written separation agreement which provided for alimony payments from Dray to his wife of $10,000 per month commencing June 1, 1984. In tax years 1984 through 1988, Dray claimed a deduction for alimony paid in arriving at his adjusted gross income for federal income tax purposes. He claimed a similar alimony deduction in the calculation of adjusted gross income for Montana income tax purposes. j

The DOR assessed deficiencies against Dray for the years 1984 through 1988 based on its disallowance of the alimony deduction. Not including penalties and interest, the total amount assessed by the DOR was $25,745.

We review conclusions of law to determine whether the district court’s interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

The DOR contends that Dray is not entitled to claim an alimony deduction because adjusted gross income for nonresident taxpayers is calculated pursuant to § 15-30-131, MCA (1991), and that statute does not expressly provide an alimony deduction for nonresidents. The DOR cites the general rule that deductions only exist by express grant of the Legislature. GBN, Inc. v. Department of Revenue (1991), 249 Mont. 261, 266, 815 P.2d 595, 597; Cyprus Mines Corp. v. Madison County (1977), 172 Mont. 116, 118, 560 P.2d 1342, 1343. This contention is based on the DOR’s premise that § 15-30-131, MCA (1991), provides a method to determine adjusted gross income and income tax deductions for nonresident taxpayers separate from that provided for resident taxpayers under § 15-30-111, MCA (1991). These statutes, in relevant parts, state the following:

15-30-111. Adjusted gross income. (1) Adjusted gross income shall be the taxpayer’s federal income tax adjusted gross income as defined in section 62 of the Internal Revenue Code of 1954 .... 15-30-131. Nonresident and temporary resident taxpayers — adjusted gross income — deductions. (1) In the case of a taxpayer other than a resident of this state, adjusted gross income includes the entire amount of adjusted gross income from sources within this state but shall not include income from annuities, interest on bank deposits, interest on bonds, notes .... Adjusted gross income from sources within and without this state shall be allocated and apportioned under rules prescribed by the department.
(3)In the case of a taxpayer other than a resident of this state who is a resident of a state that does not impose a tax on the income of natural persons residing within that state, the deductions allowed in computing net income are restricted to the greater of those directly relating to the production of Montana income or a prorated amount of those allowed under 15-30-121. For the purposes of this subsection, deductions allowed under 15-30-121 apply only to earned income and must be prorated according to the ratio that the taxpayer’s Montana earned income bears to his federal earned income.

The DOR further argues that it is apparent from § 15-30-131, MCA (1991), that the Legislature intended that deductions for nonresident taxpayers be proportionate to Montana income.

While we recognize the rule that the intention of the Legislature controls statutory construction, State ex rel. Neuhausen v. Nachtsheim (1992), 253 Mont. 296, 299, 833 P.2d 201, 204, we must first look at the plain meaning of the statute’s language. GBN, 815 P.2d at 597. If the language is clear and unambiguous, no further interpretation is required. GBN, 815 P.2d at 597. Here, there is no reason to resort to legislative intent because the language of §§ 15-30-111 and -131(1) and (3), MCA, as it appeared in 1991, is clear and unambiguous.

As Dray points out, while the allocation language in subsection -131(1), MCA (1991), may indicate that “[ajdjusted gross income from sources within and without this state shall be allocated and apportioned under rules prescribed by the department...,” no rules had, at any relevant time, been promulgated by the DOR to allocate or apportion the income to which a nonresident taxpayer’s alimony payments are attributable or to prorate the alimony deduction based on the source of the taxpayer’s income.

Furthermore, the “deductions” referred to in § 15-30-131(3), MCA (1991), are “deductions allowed in computing net income.” Net income is defined in § 15-30-101(11), MCA (1991), as adjusted gross income ‘less deductions.” These deductions are commonly referred to as “below-the-line” deductions. Alimony is an “above-the-line” deduction, a deduction used to compute adjusted gross income pursuant to I.R.C. § 62(a)(10) (1988).

The DOR concedes that alimony is an above-the-line deduction, but reasserts that such a deduction is not allowed unless specifically provided for by the Legislature.

We agree, but nonetheless conclude, that an alimony deduction is specifically provided for by Montana’s incorporation of the federal definition of adjusted gross income in § 15-30-111, MCA (1991), and that based on the definition of “taxpayer” as used in that section, there is no basis for denying that deduction to nonresident taxpayers. See § 15-30-101(19), MCA (1991). We have held in Baker Bancorporation v. Department of Revenue (1983), 202 Mont. 94, 657 P.2d 89, thatwhen a statute expressly incorporates federal gross and net income, then the deductions allowable in federal taxation must also be deemed allowable for purposes of Montana taxation.

We are not persuaded by the DOR?s argument that because § 15-30-131, MCA (1991), specifically applies to nonresidents, it should control over § 15-30-111, MCA (1991), which defines adjusted gross income. Despite the language in § 15-30-131(1), MCA (1991), that “adjusted gross income includes the entire amount of adjusted gross income from sources within this state ...,” the only definition of “adjusted gross income” in the Montana tax code is the one found at § 15-30-111, MCA (1991).

Based on the foregoing, we conclude that the District Court correctly interpreted the provisions found at §§ 15-30-111 and -131, MCA (1991), and therefore, affirm the judgment of the District Court.

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