author: MR. JUSTICE HARRISON

text:
    In the MATTER OF THE ADOPTION OF B.L.P., a minor FEMALE CHILD.
    No. 86-277.
    Submitted on Briefs Sept. 4, 1986.
    Decided Nov. 25, 1986.
    728 P.2d 803.

      Marcia Birkenbuel, Great Falls, for appellant.
    Jeffrey M. Sherlock, Helena, for respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

The natural father of minor child B.L.P. appeals an order of the District Court of the Sixteenth Judicial District in and for Fallon County, Montana, terminating his parental rights and allowing the adoption of his minor child without his consent. We affirm.

J.C.E. filed a petition to adopt the minor child, B.L.P., April 15, 1985. The petitioner was married to the child’s natural mother at that time. The mother consented to the adoption. The court granted the adoption May 14, 1985, although the natural father was not notified of the adoption proceeding and did not consent to the adoption.

The natural father (appellant here) filed a petition to set aside the adoption for lack of notice. After a hearing, it was set aside by the District Court. The original petition then was re-set for hearing, but the natural father stipulated to submission of the case to the District Court on the evidence submitted at the hearing to set aside, the briefs, and proposed findings and conclusions of counsel. A second hearing was not held.

The District Court issued its order reinstating the original decree of adoption, for the reason the natural father’s consent was not necessary to the adoption because he failed to pay child support, although he was able to contribute, during a period of one year before the filing of the petition, pursuant to Section 40-8-lll(l)(a)(v), MCA.

The issue before the Court is whether the District Court erred in finding the natural father was able to contribute to the support of B.L.P., he did not do so, and consequently his child can be adopted without his consent.

B.L.P. is the legitimate child of her mother and the appellant. The parents’ marriage was dissolved in March, 1982, when B.L.P. was one year old. The mother was awarded custody and appellant was ordered to pay $100 per month toward the child’s support. Appellant was employed at a sporting goods store from May, 1982, until June, 1983. He voluntarily quit his job in an effort to earn more money in another business. The new business did not materialize, however. He worked for his grandmother from February through September, 1984, in return for room and board and the payment of some of his debts, including $600 of child support.

In the meantime both of B.L.P.’s parents had remarried. Appellant and his present wife moved to California in November, 1984, where he obtained steady employment. They have two children. The child’s mother finished college and obtained a teaching position in August, 1984. Her husband filed the adoption petition. At the time the adoption petition was filed, appellant owed approximately $1,700 in child support.

In adoption cases, we require strict compliance with the statutes because of the harshness of permanently terminating parental rights. In the Matter of the Adoption of Biery (1974), 164 Mont. 353, 359, 522 P.2d 1377, 1380. See also In the Matter of the Adoption of R.A.S. (Mont. 1984), [208 Mont. 438,] 679 P.2d 220, 41 St.Rep. 451; and In the Matter of the Adoption of Smigaj (1977), 171 Mont. 537, 560 P.2d 141. The appropriate statute, Section 40-8-111 (1) (a) (v), MCA, says in pertinent part:

“An adoption of a child may be decreed when there have been filed written consents to adoption executed by:
“(a) both parents, if living, or the surviving parent of the child, provided that consent is not required from a father or mother:
“(v) if it is proven to the satisfaction of the court that the father or mother, if able, has not contributed to the support of the child during a period of 1 year before the filing of the petition for adoption;

Rigid application of the statute must not discount the necessity for due process. The United States Supreme Court has ruled that the natural parents’ right to care and custody of their child is a “fundamental liberty interest” to be protected by fundamentally fair procedures.

“The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in prevention of the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures. Santosky v. Kramer (1982), 455 U.S. 745, 753-54, 102 S.Ct. 1388, [1394-95], 71 L.Ed.2d 599, [606].”

In the Matter of R.B. (Mont. 1985), [217 Mont. 99,] 703 P.2d 846, 848, 42 St.Rep. 1055, 1058.

Section 40-8-111, MCA, does not provide for notice per se. Nonetheless, waiver of the right of a parent to consent to the adoption of his child is not a waiver of the due process right to be heard. While the burden is on the party seeking to adopt a child to show the non-consenting parent has not contributed child support, although able to do so, Biery, supra, 164 Mont. at 359, 522 P.2d at 1380, the non-consenting parent cannot be deprived of the opportunity to present evidence to the contrary. The District Court properly set aside the original order for adoption to allow the natural father to be heard. After the hearing the District Court properly applied the two-prong test set out in Section 40-8-lll(l)(a)(v), MCA.

There is no dispute appellant did not contribute to the support of his child during a period of one year before the filing of the petition for adoption. If no contribution has been made, it must be determined whether the non-consenting parent had the ability to contribute to the child’s support. In the Matter of the Adoption of R.A.S., supra, 679 P.2d at 223, 41 St.Rep. at 453.

Appellant argues he was unable to make support payments during the year immediately prior to the date the petition was filed. The District Court found the statutory ability to pay child support cannot be determined solely by the natural parent’s income. It also encompasses the ability to earn income and the desire to earn it. We will not overturn the findings of the District Court unless they are clearly erroneous. Rule 52(a), M.R.Civ.P. Nunnally v. Nunnally (Mont. 1981), 625 P.2d 1159, 1162, 38 St.Rep. 529, 532; Matter of R.M.B. (Mont. 1984), [213 Mont. 29,] 689 P.2d 281, 284, 41 St.Rep. 1925, 1929. We have long adhered to the standard of review which provides that we will consider only whether substantial credible evidence supports the findings and conclusions of the trial court. Matter of R.M.B., supra, 689 P.2d at 285, 41 St.Rep. at 1929.

A parent cannot voluntarily become unemployed, fail to pay court ordered child support, and retain parental rights. Matter of S.L.R. (1982), 196 Mont. 411, 415, 640 P.2d 886, 888. Appellant voluntarily gave up a steady job in the expectation he could get a better paying job. He was unable to find work in the Great Falls area, but did find a steady job in California in November, 1984, yet made no support payments prior to April 15,1985, the day the petition for adoption was filed, although his income was between $600 and $1,500 per month. He remarried and is the father of two more children. He made at least two trips to Montana for sporting events, while child support payments were in arrears. He did not see his child on either trip. He is able to pay $2000 in attorney’s fees. The record indicates his priorities were fundable, but support payments apparently were not a high priority.

Appellant argues his voluntary termination of employment in order to secure a job which would provide a decent salary is indication of a respect for his parental obligations. The District Court was not convinced by this argument. The evidence clearly shows that a “respect for parental obligations” did not motivate him to assume the burden of those obligations.

“ ‘A statute should not be interpreted in favor of a father who seeks the benefit of parental rights but shuns the burden of parental obligations.’ ” Matter of S.L.R., supra, citing with approval In Re Burton’s Adoption (Cal. 1956), 305 P.2d 185, 191.

There is substantial evidence appellant did not contribute to the support of his child, although able to do so, during a period of one year before the petition for adoption was filed.

We affirm the order of the District Court.

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


source: Caselaw Access Project

author: MR. CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. FRANKLIN T. HALL, SR., Defendant and Appellant.
    No. 86-023.
    Submitted on Briefs June 23, 1986.
    Decided Dec. 2, 1986.
    728 P.2d 1339.

      Moses Law Firm, Stephen C. Moses, Billings, for defendant and appellant.
    Mike Greely, Atty. Gen., Kimberly A. Kradolfer, Asst. Atty. Gen., Helena, Harold Hanser, Co. Atty., Curtis Bevolden, Deputy Co. Atty., Billings, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Hall appeals from a jury conviction of incest in the Thirteenth Judicial District Court, Yellowstone County. On December 17, 1985, Hall was sentenced to ten years imprisonment with five years suspended.

We reverse with instructions to dismiss the action.

Hall raises two issues for our review:

1. Does retroactive application of the incest statute void the conviction?

2. Does double jeopardy bar Hall’s retrial on a charge of sexual assault?

On November 16, 1984, the State filed an information in Yellowstone County District Court charging Franklin T. Hall with felony sexual assault on July 3, 1983. The date of the charged offense was. later amended to July 2, 1983.

On October 31, 1985, Hall moved to dismiss the State’s information. Hall argued that the victim was Hall’s twelve-year-old stepdaughter, and therefore the proper charge should be incest, which carried a lesser penalty and different elements of proof. The District Court agreed and dismissed the State’s information. The State then filed a new information charging a violation of Section 45-5-507, MCA, which provides:

“A person commits the offense of incest if he knowingly . . . has sexual intercourse with, or has sexual contact as defined in 45-2-101 with a . . . stepdaughter. . . A person convicted of incest shall be imprisoned in the state prison for any term not to exceed 10 years

Issue No. 1

Does retroactive application of the incest statute void Hall’s conviction?

The incest statute had been amended on April 21, 1983, effective October 1, 1983. The amendment added “stepdaughter” to the list of prohibited relationships. The controlling incest statute for Hall’s acts on July 2, 1983, did not include a stepdaughter among the victims. The Court notes that this case proceeded through trial and sentencing, without Hall or the State noticing the effective date of the amended incest statute.

As applied to Hall, the State’s retroactive enforcement of the amended incest statute violated Article II, Section 31, of the 1972 Montana Constitution: “No ex post facto law . . . shall be passed by the legislature.” This section is identical to Art. Ill, Section 11, of the 1889 Montana Constitution, under which we held: “[Retroactive effect is not to be given to a statute unless commanded by its context, terms, or manifest purpose.” Falligan v. School District (1917), 54 Mont. 177, 179, 169 P. 803, 804. We find nothing in the amended incest statute which permits retroactive application. The imposition of a sentence for a conviction, under statutes not in force at the time the offense was committed, is an ex post facto application of the law and therefore unconstitutional. State v. Gone (1978), 179 Mont. 271, 280, 587 P.2d 1291, 1297.

In its brief, the State admits that the incest statute was improperly and retroactively applied to an act which was noncriminal on July 2,1983. The State further admits that the conviction is void but wishes to re-prosecute Hall on its original charge of sexual assault.

Therefore, we reverse the conviction for incest as a matter of law and proceed to the issue of retrial for sexual assault.

Issue No. 2

Does double jeopardy bar Hall’s retrial on a charge of sexual assault?

The Fifth Amendment clause against double jeopardy is enforceable in Montana through the Fourteenth Amendment. Benton v. Maryland (1969), 395 U.S. 784, 795, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707, 716. Furthermore, the Montana Constitution, Article II, Section 25, states: “No person shall be again put in jeopardy for the same offense previously tried in any jurisdiction.” Jeopardy attached in Hall’s incest trial at the empaneling and swearing of the jury. Crist v. Bretz (1978), 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24, 33.

The double jeopardy clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. State v. Lindseth (Mont. 1983), 203 Mont. 115, 659 P.2d 844, 846, 40 St.Rep. 333, 335. North Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-665.

If the offense charged in the second trial is the same in law and fact as the offense charged in the first trial, the double jeopardy clause prohibits successive trials. Brown v. Ohio (1977), 432 U.S. 161, 167, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187, 195, n. 6. In the instant case, double jeopardy is therefore predicated on whether Hall’s incestuous conduct constituted the same offense in law and in fact as sexual assault.

Sexual assault is defined in Section 45-5-502, MCA:

“A person who knowingly subjects another not his spouse to any sexual contact without consent commits the offense of sexual assault ... If the victim is less than 16 years old and the offender is 3 or more years older than the victim ... he shall be imprisoned in the state prison for any term not to exceed 20 years ...”

Hall’s conduct consisted of repeatedly fondling his stepdaughter’s genitals. Hall moved to dismiss the original charge of sexual assault, asserting that the proper charge should be incest, which carried a maximum sentence of only ten years. At the hearing on Hall’s motion, the State’s counsel argued that Section 46-11-502(4), MCA, gives the State discretion to charge either sexual assault or incest. In pertinent part, that statute provides:

“When the same transaction may establish the commission of more than one offense, a person charged with such conduct may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if. . . (4) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct. . . . [Emphasis added.]”

In analyzing the “general” and “specific” conduct language, we note that the prosecution’s proof of “sexual contact” is the same in both the incest statute and the sexual assault statute. Section 45-2-101(60), MCA, states: “ ‘Sexual contact’ means any touching of the sexual or other intimate parts of the person of another for the purpose of arousing or gratifying the sexual desire of either party.”

As applied to Hall, the statutory elements of incest are (1) sexual contact, (2) knowingly, (3) with a stepdaughter. The. elements of sexual assault are (1) sexual contact, (2) knowingly, (3) with another without consent. Under the facts of this case, “without consent” requires no separate proof as an element of sexual assault because the stepdaughter was, at the time of the offense, under the age of sixteen and the offender was more than three years older than the victim. Section 45-5-502, MCA.

The first two elements of each offense are identical. The third element defines the victim. The victim of Hall’s knowing sexual contact was his twelve-year-old stepdaughter. Therefore, under Section 46-11-502(4), the “designated kind of conduct generally” refers to the sexual assault of anyone. The “specific instance of such conduct” refers to the sexual assault of Hall’s stepdaughter.

The State supported this interpretation at the hearing on Hall’s motion to dismiss, when it asserted:

“The State reads [46-11-502(4), MCA] to apply to the situation at hand as follows: In the instant case the facts involved support a charge of sexual assault. The facts involved also support a charge of incest. Because of the statute, 46-11-502(4), the State in its discretion has charged the offense of sexual assault, using the discretion given to it by the statute.”

We agree with the State. A second prosecution of Hall for sexual assault would be based upon the same sexual contact with the same victim on the same dates as alleged in the incest charge. Hall’s series of acts, which were necessary to convict Hall of incest, are the same series of acts which are necessary to convict Hall of sexual assault. Thus, in Hall’s case, the statutory elements for both offenses are essentially the same. As we held in State v. Parmenter (1941), 112 Mont. 312, 316, 116 P.2d 879, 880, double jeopardy in a second trial exists if the acts identified in the second information were admissible as evidence in the first trial and would have sustained a conviction under the first information.

Our analysis is supported by the State’s own argument, later at the same hearing, where it asserted:

“The only difference between the two statutes [incest and sexual assault] is whether or not in this case the defendant is the stepfather of the victim ... In any case, the defendant is not put at any disadvantage by the fact that we have charged sexual assault instead of incest, simply because incest and sexual assault are identical with the exception of the family relationship involved.”

Hall repeatedly fondled his stepdaughter. Each act of fondling would now be an incest offense and a sexual assault offense. As we held in State v. Wells (1983), [202 Mont. 337,] 658 P.2d 381, 389, 40 St.Rep. 127, 135, if a person could not commit one offense without committing the other, then the offenses are the same. Hall’s incestuous conduct constituted the same offense in law and in fact as sexual assault. Therefore, the double jeopardy clause prohibits Halls’ retrial. Brown, 432 U.S. at 167 n.6, 97 S.Ct. at 2226, n. 6.

Furthermore, Hall was convicted of a crime which did not exist on the date of the charged offense. We discussed the conviction of a nonexistent crime and subsequent prosecution in State v. Hembd (1982), 197 Mont. 438, 643 P.2d 567. Hembd was convicted by jury of the nonexistent crime of “attempted misdemeanor negligent arson.” We held that retrial for negligent arson would violate the prohibition against double jeopardy. Hembd, 197 Mont. at 440, 643 P.2d at 568.

Hall’s conviction of a nonexistent crime was due to a legally defective information. The defect was fatal to a valid conviction. However, Hall was subjected to jeopardy and sentenced to five years imprisonment. Had Hall not appealed, the defect would have gone unnoticed and Hall would have been imprisoned. The prohibition against double jeopardy is designed to ensure that a defendant will not be forced to live in a continuing state of anxiety and insecurity. Ohio v. Johnson (1984), 467 U.S. 493, 498-499, 104 S.Ct. 2536, 2542, 81 L.Ed.2d 425, 433. More importantly, a defendant whose conviction is reversed, because the evidence is insufficient as a matter of law to sustain the conviction, cannot be retried. The purposes of the double jeopardy clause “would be negated were we to afford the government an opportunity for the proverbial ‘second bite of the apple.’ ” Burks v. United States (1978), 437 U.S. 1, 17, 98 S.Ct. 2141, 2150. 57 L.Ed.2d 1, 13.

In conclusion, the State’s prosecution of Hall in the original trial, on a charge of incest, bars Hall’s retrial on a charge of sexual assault.

We reverse, with instructions to dismiss.

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


author: MR. JUSTICE GULBRANDSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. KEITH R. GEYMAN, Defendant and Appellant.
    No. 85-638.
    Submitted on Briefs Nov. 7, 1986.
    Decided Dec. 9, 1986.
    729 P.2d 475.
    Keith R. Geyman, pro se.
    Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Jay Erickson, Legal Intern, Helena, Robert L. Deschamps, III, Co. Atty., Missoula, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Keith Geyman appeals a Missoula County District Court jury verdict convicting him of deviate sexual conduct. The court sentenced Geyman to forty years with ten years suspended and no possibility of parole.

The issues on appeal are whether there was sufficient evidence to support the conviction and whether expert testimony concerning the credibility of a child alleged to have been the victim of a sexual assault should be admitted into evidence. .

We affirm.

On September 20, 1984, defendant Geyman accompanied his girlfriend and three of her sons, including nine-year-old Shane, on a trip from Missoula to Kalispell, Montana. At this point Geyman had been living in Missoula with his girlfriend for about a month. Before leaving Missoula, Geyman consumed several beers and some speed. The girlfriend and two of her sons remained in Kalispell while Geyman and Shane, the third son, returned to Missoula late that evening. Shane testified that on the trip home Geyman stopped the car three or four times and on each occasion asked him to perform oral sex. Shane refused the requests and testified that Geyman then performed oral sex on him. Geyman purchased more beer upon arrival in Missoula and then drove to the apartment with Shane. A short time later, Geyman entered Shane’s bedroom and performed anal sex on the boy which continued the remainder of the night and early morning. Shane testified that Geyman slapped him numerous times during the assault and told him not to tell anyone. Shane left the apartment at around 8:00 a.m. and walked to the apartment of his mother’s friend who testified that Shane appeared tired, had circles under his bloodshot eyes, had very flushed cheeks, and acted very nervous. Shane went to school that day and stayed at the friend’s apartment until his mother returned from Kalispell shortly after midnight.

On October 14, 1984, or just over three weeks after the incident, Shane told his mother about Geyman’s attacks, whereupon the mother contacted law enforcement authorities. After an interview with the authorities, Shane was examined by a pediatrician, two clinical psychologists and a children’s psychiatrist, all of who testified at the trial.

The test as to the sufficiency of the evidence was stated in State v. Wilson (Mont. 1981), 631 P.2d 1273, 1278-1279, 38 St.Rep. 1040, 1047, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed2d 560, 573:

“[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Emphasis in original.]

Shane testified that Geyman repeatedly performed anal sex on him and slapped him several times during the assault. Shane’s testimony was corroborated by his mother’s friend with whom he had stayed earlier. She observed that Shane was nervous, exhausted and complained of Geyman slapping him and not allowing him to sleep. She testified that Shane refused to travel back to Kalispell with Geyman to pick up his mother. The mother testified that her son’s room was in unusual disarray the day after the incident and that he is now afraid to sleep alone. Shane told a law enforcement officer that Geyman had told him not to tell anybody. In addition, the officer went to interview Geyman and before being informed of the nature of the interview, Geyman stated that he did not rape Shane.

Dr. Jenni, a clinical psychologist, testified that Shane related his testimony with anatomically correct dolls, was extremely embarrassed, tense, and had extreme difficulty describing the defendant’s repeated attacks. Dr. Walters, also a clinical psychologist, testified that Shane was acutely anxious, frightened, and very uncomfortable as he explained the attack.

The evidence supporting the conviction is compelling and is sufficient to sustain the jury verdict. The testimony of the victim and his witnesses was substantially consistent and any rational trier of fact could find that the essential elements of deviate sexual conduct have been met.

The issue of whether expert testimony concerning the credibility of a child alleged to have been the victim of a sexual assault should be admitted into evidence as a case of first impression for this Court. We have dealt with the expert testimony issue as to adult sexual assault victims in two recent cases. In State v. Liddell (Mont. 1984), [211 Mont. 180,] 685 P.2d 918, 41 St.Rep. 1293, involving sexual intercourse without consent, we held that expert testimony on rape trauma syndrome would be helpful to the jury in deciding the issue of consent. This Court said:

“We believe that skilled direct and cross-examination of an expert in this area can assist the jury in determining whether, in fact, the victim consented to the act.”

Liddell, [211 Mont. 180,] 685 P.2d at 923.

In State v. Brodniak (Mont. 1986), [221 Mont. 212,] 718 P.2d 322, 329, 43 St.Rep. 755, 763, we held that expert testimony in support of the rape victim’s testimony was improper comment on the victim’s credibility and therefore an invasion of the province of the jury:

“Clearly [the expert’s] testimony with regard to malingering and the statistical percentage of false accusations was improper comment on the credibility of [the complaining witness] in light of the above cited authority and should not have been admitted in this case.”

The Court in Brodniak distinguished Liddell saying that rape trauma syndrome is a proper subject for expert testimony in a sexual intercourse without consent case. “Where all that is disputed is the consent element such evidence is relevant to the question of whether there was consent to engage in a sexual act which all parties agreed occurred.” Brodniak, 718 P.2d at 326.

Since the admissibility of similar expert testimony in a case involving the sexual assault of a child is a novel issue for this Court, we feel it is proper to analyze the interpretations of other jurisdictions.

Two Minnesota cases are especially relevant to the case before us. In State v. Saldana (Minn. 1982), 324 N.W.2d 227 the situation involved expert testimony as to the typical post-rape behavior of most victims as compared to the behavior of the victim in this case. Based on her findings, the expert stated that she believed the complainant was the victim of sexual assault and rape. The court said that permitting the expert to suggest that because the complainant exhibits some of the symptoms of rape trauma syndrome, the complainant was therefore raped, unfairly prejudices the accused by creating an aura of special reliability and trustworthiness. Saldana, 324 N.W.2d at 230. The court believed that rape trauma syndrome was not a fact-finding tool and that the jury was capable of considering the evidence and determining whether a rape had occurred. However, the court did say that under the right set of facts, such testimony should be admitted.

“Expert testimony concerning the credibility of a witness should be received only in ‘unusual cases.’ [Citations omitted.] An example of such an unusual case is a sexual assault case where the alleged victim is a child or mentally retarded.” [Emphasis added.]

Saldana, 324 N.W.2d at 231.

Two years later, the Minnesota court once again considered a rape case involving expert testimony on rape trauma syndrome. State v. Myers (Minn. 1984), 359 N.W.2d 604. However, the victim in this case was a seven-year-old child, not an adult. The court held that it was within the trial court’s discretion to admit testimony describing the psychological and emotional characteristics typically observed in sexually abused children and those observed in the complainant and giving other background data providing a relevant insight into the conduct of the child complainant which the jury could not otherwise bring to its evaluation of the child’s credibility.

In approving the expert testimony, the court made the following remarks:

“With respect to most crimes the credibility of a witness is peculiarly within the competence of the jury, whose common experience affords sufficient basis for the assessment of credibility. In most cases, even though an expert’s testimony may arguably provide the jury with potentially useful information, the possibility that the jury may be unduly influenced by an expert’s opinion mitigates against admission. Nor should the credibility of witnesses in criminal trials turn on the outcome of a battle among experts. The nature, however, of the sexual abuse of children places lay jurors at a disadvantage. Incest is prohibited in all or almost all cultures, and the common experience of the jury may represent a less than adequate foundation for assessing the credibility of a young child who complains of sexual abuse. If the victim of a burglary failed to report the crime promptly, a jury would have good reason to doubt that person’s credibility. A young child subjected to sexual abuse, however, may for some time be either unaware or uncertain of the criminality of the abuser’s conduct. As [the expert] testified, uncertainty becomes confusion when an abuser who fulfills a caring-parenting role in the child’s life tells the child that what seems wrong to the child is, in fact, all right. Because of the child’s confusion, shame, guilt, and fear, disclosure of the abuse is often long delayed. When the child does complain of sexual abuse, the mother’s reaction frequently is disbelief, and she fails to report the allegations to the authorities. By explaining the emotional antecedents of the victim’s conduct and the peculiar impact of the crime on other members of the family, an expert can assist the jury in evaluating the credibility of the complaint. See State v. Middleton, 294 Or. 427, 657 P.2d 1215 (1983).”

Myers, 359 N.W.2d at 609-610.

In distinguishing this case from Saldana, 324 N.W.2d 227, where the consent of an adult victim was at issue, the Minnesota court went on to say this:

“In the case of a sexually abused child consent is irrelevant and jurors are often faced with determining the veracity of a young child who tells of a course of conduct carried on over an ill-defined time frame and who appears an uncertain or ambivalent accuser and who may even recant. Background data providing a relevant insight into the puzzling aspects of the child’s conduct and demeanor which the jury could not otherwise bring to its evaluation of her credibility is helpful and appropriate in cases of sexual abuse of children, and particularly of children as young as this complainant. State v. Middleton, supra; State v. Kim, 64 Hawaii 598, 645 P.2d 1330 (1982). See also State v. Loss, 295 Minn. 271, 280, 204 N.W.2d 404 (1973) (battered child syndrome); Ibn-Tamas v. United States, 407 A.2d 626 (D.C. Cir. 1979) (battered wife syndrome).”

Myers, 359 N.W.2d at 610.

The issue has received recent treatment in the literature:

“The argument that such expert psychological testimony is prejudicial because it bears on the credibility of a witness, and thus invades the province of the jury, is simply wrong. Expert testimony cannot ‘invade the province of the jury’ unless the jury is instructed that it must agree with the expert’s assessment. [Emphasis in original.]”

Massaro, Experts, Psychology, Credibility and Rape: “The Rape Trauma Syndrome Issue and Its Implications for Expert Psychological Testimony,” 69 Minn.L.Rev. 395, 443 (1985).

The Oregon Supreme Court faced a similar situation in State v. Middleton (1983), 294 Or. 427, 657 P.2d 1215. In that case a father was charged with raping his fourteen-year-old daughter. At one point before trial, the daughter recanted her testimony. The State’s expert testified that the stress on a child from an intra-family sexual assault can cause denial to occur. In holding that such testimony did not invade the province of the jury, the court stated:

“It would be useful to the jury to know that not just this victim but many child victims are ambivalent about the forcefulness with which they want to pursue the complaint, and it is not uncommon for them to deny the act ever happened. Explaining this superficially bizarre behavior by identifying its emotional antecedents could help the jury better assess the witness’s credibility.” Middleton, 657 P.2d at 1220.

A Hawaii Supreme Court decision is in line with the Myers and Middleton cases. State v. Kim (1982), 64 Hawaii 598, 645 P.2d 1330. The court held that the admission of expert testimony was proper:

“When . . . the nature of a witness’ [sic] mental or physical condition is such that the common experience of the jury may represent a less than adequate foundation for assessing the credibility of a witness, the testimony of an expert is far more likely to be of value, and thus more likely to be admissible when its probative value is measured against its prejudicial effects.”

Kim, 645 P.2d at 1337.

In the case before us, two expert witnesses testified as to the victim’s emotional condition at the time they interviewed him. On cross-examination, Dr. Stratford gave the following testimony:

“Q. [Mr. Wilson, defense counsel] What I’m talking about is the length of time that you were with this little boy, the amount of time that you had to be with him, based on that time you were able to come up with a conclusion and render an opinion. That’s all.
“A. [Dr. Stratford] That’s correct. Based on my time spent, it’s my professional opinion that the boy had been traumatized and physically abused by someone. As I said twice before, though, that’s ultimately a jury question.”

Dr. Jenni’s testimony as to her findings and conclusions is set out below:

“Q. What is your general experience with children in this area?
“A. General experience is that children don’t make up such stories, and the research also backs that up. That it’s like well under five percent of the cases that it’s ever found out not to be true.
“Q. Dr. Jenni, do you have an opinion as to whether Shane was sexually assaulted?
“A. Yes.
“Q. What is that opinion?
“A. I believe that he was.
“Q. What do you base that on?
“A. I base that on the story that he told me and that it was very credible. It was consistent. It was very anxiety producing for him. I mean he — he was not lying, and my general impression was that he was telling me the truth. That was a very painful story. That he would not have made up a story that was so painful to him.”

We hold that expert testimony was admissible for the purpose of helping the jury to assess the credibility of a child sexual assault victim. The expert testimony in no way impinged upon the jury’s obligation to decide the victim’s credibility. It merely enlightened the jurors on a subject with which many or most jurors have no common experience they can use to judge the victim’s credibility. The victim in this case waited over three weeks before reporting the assault which, according to the expert testimony given in this case and others, is not uncommon for children subjected to sexual abuse. Young children are often unaware or uncertain of the criminality of the abuser’s conduct and feelings of confusion, shame, guilt and fear often delay disclosure of the abuse for an indefinite period of time. Myers, 359 N.W.2d at 610.

The jury had the discretion to accept or reject the expert testimony in its entirety and in the end they were the sole judge of the child’s credibility. The expert testimony was properly admitted.

Affirmed.

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


author: MR. JUSTICE WEBER

text:
    COLUMBIA FALLS ALUMINUM CO., Montana Aluminum Investors Corp., Brack Duker and James Broussard, Plaintiffs and Appellants, v. HINDIN/OWEN/ENGELKE, INC., Defendant and Respondent.
    No. 86-202.
    Submitted on Briefs Sept. 18, 1986.
    Decided Dec. 9, 1986.
    Rehearing Denied Jan. 8, 1987.
    728 P.2d 1342.

      Browning, Kaleczyc, Berry & Hoven, J. Daniel Hoven, Helena, Murphy, Robinson, Heckathorn & Phillips, C. Eugene Phillips, Kalispell, for plaintiffs and appellants.
    Murray, Kaufman, Vidal & Gordon, John Gordon, Kalispell, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiffs filed a complaint in the Flathead County District Court of the Eleventh Judicial District, based on a contract dispute with Hindin/Owen/Engelke, Inc. (HOE). The District Court dismissed the complaint and an accompanying temporary restraining order on the grounds that it lacked the necessary personal jurisdiction over HOE. We affirm.

The issue is whether the District Court erred in dismissing plaintiffs’ complaint on the grounds that it did not have personal jurisdiction over HOE.

HOE is an investment banking firm incorporated in the State of California with offices in California. In California, HOE was approached by plaintiff Duker, a California resident, regarding his attempt to locate a lender to finance the purchase of the aluminum reduction facility located in Columbia Falls, Montana. By contract executed in California, HOE agreed with Mr. Duker to attempt to locate a lender for the venture. On two occasions an officer of HOE traveled from California to Montana to assist prospective lenders in examination of the Columbia Falls plant. The HOE officer was present in the state for several hours on each occasion.

HOE maintains it presented to Mr. Duker two funding commitments from different lenders which met the requirements of the contract. Both commitments were rejected. On November 21, 1985, HOE filed a complaint for damages for breach of contract in the Superior Court of California, County of Los Angeles. On December 9, 1985, plaintiffs filed a complaint in the District Court for the Eleventh Judicial District of Montana and on that date the Montana District Court signed a temporary order restraining HOE from perfecting service on Columbia Falls Aluminum Co. in the California suit.

On February 5, 1986, the Montana District Court issued an order dismissing the complaint for lack of personal jurisdiction of HOE and dissolved the temporary restraining order. On February 24, 1986, the California Superior Court refused to grant the motion to dismiss of Columbia Falls Aluminum Co. which subsequently filed an answer and cross complaint in that proceeding.

I

Did the District Court err in dismissing Columbia Falls Aluminum Co.’s complaint on the grounds that it did not have personal jurisdiction over HOE?

Rule 4B, M.R.Civ.P., states the rule regarding jurisdiction of person by Montana courts. Specifically pertaining to this case are Rule 4B(l)(a) and (e), which provide:

“(1) Subject to jurisdiction. All persons found within the State of Montana are subject to the jurisdiction of the courts of this state. In addition, any person is subject to the jurisdiction of the courts of this state as to any claim for relief arising from the doing personally, through an employee, or through an agent, of any of the following acts;
“(a) the transaction of any business within this state;
“(e) entering into a contract for services to be rendered or for materials to be furnished in this state by such person;”

This Court has set out a test to determine when a Montana court may exercise jurisdiction over a nonresident defendant:

“(1) Does the nonresident defendant come within the provisions of Montana’s long-arm jurisdiction statutes; and (2) would exercise of long-arm jurisdiction over the nonresident comport with traditional notions of fair play and substantial justice. (Cites omitted.)

“If we find, as a matter of statutory construction, that the nonresident does not engage in any of the several activities enumerated in our long-arm statute, then our analysis ends and we must decline jurisdiction. However, even if the nonresident has done something which potentially confers jurisdiction, we must advance to the due process component which is ultimately determinative of the jurisdictional question.”

Simmons v. State (Mont. 1983), [206 Mont. 264,] 670 P.2d 1372, 1376, 40 St.Rep. 1650, 1652-53.

The District Court applied Rule 4B as well as the two part test contained in Simmons when it determined that it would not invoke jurisdiction over HOE. In its analysis of the transaction of business in Montana by HOE under Rule 4B(l)(a), the District Court’s order stated:

“HOE has no property in Montana, does not maintain any offices here, and has no agents or representatives in this state. HOE does not advertise in Montana or solicit business in this state.”

In its analysis of the nature of the contract for services to be rendered in this state by HOE under Rule 4B(l)(e), the District Court stated:

“Further, the locus of performance of the contract in question here was California. The place of performance of a contract is the place where the obligation being sued upon was to be performed. Whalen v. Snell, [205 Mont. 299,] 667 P.2d 436 at 437 (Mont. 1983). HOE was engaged to locate lenders for Plaintiff Duker’s venture. The parties’ contract was negotiated and executed in California and HOE’s performance efforts were directed from its California office. The contract itself states that it is governed by California law.”

The District Court concluded that it did not have personal jurisdiction over HOE under Rule 4B. Under the Simmons rule, the analysis could have stopped there. However, the District Court also considered whether the exercise of long-arm jurisdiction comported with traditional notions of fair play and substantial justice and concluded that under principles of comity and cooperative federalism, the issue should be tried in the California court. While we agree that this case can be best resolved in the California court, we do wish to point out that the Montana court properly had jurisdiction of this matter.

The engagement letter signed with HOE involved a loan for the operation of the Montana aluminum reduction facility in Columbia Falls. The collateral for the operating loan was to be the Columbia Falls facility itself. The HOE representative made two separate trips to Montana with prospective lenders in order to assist in the inspection of the Columbia Falls facilities and also attended business meetings while in Montana. The Columbia Falls Aluminum Co. was the party contemplated to benefit from the financing arrangement. These facts are sufficient to constitute the transaction of business in the State of Montana by HOE. We therefore conclude that the non-resident HOE did engage in sufficient activities to come within the provisions of the Montana statutes as described in Simmons.

We are therefore next required to consider whether the exercise of long-arm jurisdiction comports with traditional notions of fair play and substantial justice. The District Court found that HOE owned no property in Montana and did not maintain Montana offices or have agents or representatives in Montana. No telephone calls were made by HOE to Montana. The engagement letter was signed in California. HOE was a California corporation and initially was doing business with Mr. Duker, a California resident. A majority of the witnesses to the controversy reside in California. In addition, the agreement itself stated that the governing law is that of the State of California. As did the District Court, we therefore conclude that traditional notions of fair play and substantial justice require a conclusion that the State of California is the better jurisdiction for the trial of the issues in this case. While it might have been appropriate for the Montana court to exercise jurisdiction, considerations of comity persuade us that California should be allowed to exercise jurisdiction in this dispute. As stated in Simmons, comity is defined as:

“ ‘not a rule of law, but one of practice, convenience, and expediency’ (Mast, Foos & Co. v. Stover Mfg. Co., 177 U.S. 485, 488, 20 S.Ct. 708, 710, 44 L.Ed. 856). It does not of its own force compel a particular course of action. Rather, it is an expression of one state’s entirely voluntary decision to defer to the policy of another. (Cite omitted.) Such a decision may be perceived as promoting uniformity of decision, as encouraging harmony among participants in a system of cooperative federalism, or as merely an expression of hope for reciprocal advantages in some future case in which the interest of the forum are more critical.”

Simmons, 670 P.2d at 1385. (Quoting from Ehrlich-Bober & Co. v. University of Houston (1980), 49 N.Y.2d 574, 404 N.E.2d 726, 427 N.Y.S.2d 604).

We affirm the District Court in its dismissal of the complaint.

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


text:
    In re the MARRIAGE OF MARILYN JOY COLE, Petitioner and Respondent, and JAMES W. COLE, Respondent and Appellant.
    No. 86-210.
    Submitted on Briefs Aug. 14, 1986.
    Decided Dec. 9, 1986.
    729 P.2d 1276.

      Law Offices of Frank Altman, Ivan C. Evilsizer, Havre, for respondent and appellant.
    Bosch, Kuhr, Dugdale, Warner, Martin & Kaze, Mary Van Bus-kirk, Havre, for petitioner and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from a dissolution and custody proceeding arising from the Twelfth Judicial District in and for Hill County, Montana. Husband appeals both from the custody and dissolution determination, as well as collateral issues. We affirm in full.

James and Marilyn Cole were married in March of 1974. During their twelve year marriage, they bore two children, Christen, age 7 at the time of this appeal, and Robby, age 5. Both Christen and Robby are gifted children; Robby, however, is diagnosed as a Down’s Syndrome child and continues to manifest a learning and physical disability.

Because of Robby’s special circumstances, considerable testimony was presented at trial concerning the custody arrangement which would best suit Robby’s needs. Robby’s teachers, therapist and trainer all testified as to the scope of responsibilities that must be addressed by a custodial parent of a Down’s child. In addition, the court received the recommendation of two court appointed investigators, Susan Fowler and Dr. Robert Stehman.

In its decree of dissolution, the court awarded the parents joint custody of their children; Wife is to be the custodial parent for nine months, twenty days — roughly equivalent to the school year — and Husband is to be the custodial parent for two months, ten days during the summer. As to the distribution of the marital estate, the court first determined the value of all the property therein and subtracted the liabilities. Among the liabilities listed by the court were each party’s attorney’s fees and costs. The court then awarded Husband the estate, but ordered him to pay the equivalent of one-half the net to the Wife. Finally, the court refused to place a travel restriction upon the Wife during that time in which she is the custodial parent. Wife has expressed a desire to move to Florida and Husband had sought a court order restricting her from moving outside the state of Montana with the children. Husband now appeals.

I

Husband first contests the District Court’s custody determination. He presents three arguments.

A

Husband’s first argument is that the District Court failed to give proper consideration to the statutorily required factors listed in Section 40-4-212, MCA, and those additional factors recently articulated by this Court in In Re the Custody and Support of B.T.S. (Mont. 1986), [219 Mont. 391,] 712 P.2d 1298, 43 St.Rep. 37.

Section 40-4-212, MCA, requires that a court determine custody in accordance with the child’s best interests and that, in so doing, it consider all relevant factors, including:

“(1) the wishes of the child’s parent or parents as to his custody;
“(2) the wishes of the child as to his custodian;
“(3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest;
“(4) the child’s adjustment to his home, school, and community; and
“(5) the mental and physical health of all individuals involved.” In B.T.S., supra, this Court further suggested three related criteria worthy of a court’s consideration in a joint custody determination. First, in conjunction with Section 40-4-212(1), a court should consider the parents’ ability to cooperate in their parental roles. B.T.S., 712 P.2d at 1301. Second, in conjunction with Section 40-4-212(3), a court should consider the child’s relationship with both parents. B.T.S., 712 P.2d at 1301. And third, a court should consider the physical proximity of the parents’ residence. B.T.S., 712 P.2d at 1301-02.

Contrary to the claims of the Husband, we find that the District Court’s findings amply demonstrate that the court properly considered the required factors. First, the court made a specific finding as to the wishes of the parents and their conflicting custody requests. Second, as to the wishes of the children, Dr. Stehman testified that Christen wanted to live with her mother and the court followed his recommendation; due to Robby’s disability his wishes were not determinable. Third, as to the children’s relationship with their family and significant others, the court found that both children appeared to enjoy a particularly strong relationship with their mother and that she has always been uniquely involved with Robby’s treatment. The court further found that the two children enjoy a close relationship with one another and noted that professional testimony recommended they remain together.

As to the fourth factor, the child’s adjustment to his environment, the court’s findings summarized evidence of the mother’s extensive role in fostering both children’s development. The court specifically noted the mother’s comprehensive involvement in Robby’s special care. Fifth, the court noted that the special needs of Robby required that he have continuous and consistent treatment, that his school year not be interrupted by change of residence and that the children not be separated. And sixth, the court noted that the mother was contemplating a move to Florida.

In short, we find that the District Court considered the required factors and made specific findings regarding the best interests of the children in its custody decision. We do not require a court’s findings to be in any particular form so long as there is substantial, credible evidence to support the court’s judgment on the merits. In Re the Marriage of Burleigh (1982), 200 Mont. 1, 6, 650 P.2d 753, 756. We uphold the District Court’s findings.

B

Husband’s second argument is that the District Court erred by awarding him actual physical custody for only two months, ten days. He essentially bases his argument on language within Section 40-4-224(2), MCA, which states that the physical custody time allotment between parents shall be as equal as possible. Husband accordingly argues that he is therefore entitled to physical custody for at least six months.

We disagree. Section 40-4-224(2), MCA, states in relevant part:

“The allotment of [physical custody] time between parties shall be as equal as possible; however, each case shall be determined according to its own practicalities with the best interests of the child as the primary consideration.” (Emphasis added.)

Thus, depending upon the circumstances of the case, equal physical custody will not be awarded if such is not in the best interests of the children.

In this case, the District Court expressly found that because of the special needs of Robby, it would clearly be in his best interest that his physical custody for the school year not be interrupted. The court further found that it would clearly be in Robby’s best interest that his physical custody for the school year be with his mother and finally, that it would be in the best interests of both Robby and Christen that the two children not be separated. The court accordingly awarded Wife physical custody of both children for the school term.

The decision is amply supported by the evidence. Testimony from the children’s teachers, counselors, service providers to Robby, the family doctor and the two court appointed investigators on custody all recommended to the court that the Wife continue as the primary custodial parent. Further, the school counselor, Robby’s Child and Family Service counselor, Robby’s Head Start teacher, and Robby’s speech therapist, all testified that it would be better for Robby to maintain one residence during the school year.

Findings and conclusions of a district court as to the best interests of a child are presumptively correct and will not be overturned unless there is a clear preponderance of the evidence against them. B.T.S., 712 P.2d at 1300. We will consider only whether substantial credible evidence supports the findings and conclusions. B.T.S., 712 P.2d at 1300. In this case, there exists substantial credible evidence supporting the District Court’s determination that the best interests of both children would be served by remaining with their mother for the school term. We uphold this determination.

C

Third, Husband challenges the District Court’s refusal to issue a restriction on travel upon the Wife during that time in which she has physical custody of the children. As noted, Wife has expressed her desire to relocate in Tampa, Florida. Husband argues that if she is allowed to take Christen and Robby with her, he will be effectively removed from his children for all but the two month, ten day physical custody period to which he is entitled.

Initially, we again note that the findings and conclusions of a district court as to the best interests of a child are presumptively correct and will not be overturned unless there is a clear preponderance of the evidence against them. B.T.S., 712 P.2d at 1300.

In this action, the District Court evidently did not believe that a travel restriction was in the children’s best interests. It received testimony from the Wife describing the advanced employment opportunities available in the Tampa area as well as testimony from one of Robby’s counselors that Tampa is likely to provide a more complete line of services to handicapped children. We find that the District Court’s refusal was not an abuse of discretion.

Moreover, we note that requests for impositions of travel restrictions upon custodial parents force courts to conduct a delicate balancing. On the one side, courts must consider the best interests of the child — that statutorily required benchmark of all custodial determinations. And it is by now little argued that a child’s interests are best served by consistent and continuing contact with both natural parents. This state has explicitly adopted this goal as public policy. Section 40-4-222, MCA.

As a counterweight, courts must also consider the custodial parent’s fundamental right to travel — at least interstate. See Shapiro v. Thompson (1969), 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600. Some states have eased this difficult burden of the courts by enacting “anti-removal” legislation, which, to an extent, statutorily dictates when a custodial parent may remove his or her children from the state. See Mass.Gen.Laws Ann. ch. 208, Section 30 (West 1981); Ill.Rev.Stat. ch. 40, Section 609 (1977); New Jersey Stat.Ann. 9:2-2.

Other courts have dismissed the custodial parent’s right to travel, holding that a travel restriction places no burden on the parent’s right to travel; it is the children who must remain in the state. See Clark v. Atkins (Ind. 1986), 489 N.E.2d 90. We find this conclusion unpersuasive. The custodial parent who bears the burdens and responsibilities of raising the child is entitled, to the greatest possible extent, to the same freedom to seek a better life for herself or himself and the children as enjoyed by the noncustodial parent. See Cooper v. Cooper (1984), 99 N.J. 42, 491 A.2d 606, 613.

We agree, however, that the custodial parent’s freedom is qualified by the special obligations of custody, the state’s interest in protecting the best interests of the child and the competing interests of the noncustodial parent. In short, it is the court’s task to attempt to reconcile the interests of both parents with the best interests of the child. Cooper, 491 A.2d at 613.

As a fundamental right, the right to travel interstate can only be restricted in support of a compelling state interest. See, Shapiro, 394 U.S. at 634, 89 S.Ct. at 1331. We believe that furtherance of the best interests of a child, by assuring the maximum opportunities for the love, guidance and support of both natural parents, may constitute a compelling state interest worthy of reasonable interference with the right to travel interstate. Ziegler v. Ziegler (1984), 107 Idaho 527, 691 P.2d 773. We caution, however, that any interference with this fundamental right must be made cautiously, and may only be made in furtherance of the best interests of the child. To that end, we require the parent requesting the travel restriction to provide sufficient proof that a restriction is, in fact, in the best interests of the child.

II

Husband further argues that the District Court erred by failing to disqualify himself after participating in an unsuccessful settlement conference. On October 25, 1985, the court held a pre-trial conference in which possible settlement terms were evidently discussed. The parties failed to reach a settlement and the court ultimately heard the case at trial. Neither party moved the judge to disqualify himself.

Husband now argues on appeal that from the pre-trial conference the trial judge formed certain biases about the case and acquired a personal dislike for the Husband which the judge carried into trial. Under the circumstances, Husband concludes, the judge should have automatically disqualified himself when the conference ended without settlement.

We disagree. This Court very recently expressed its concern about the participation in pre-trial settlement negotiations of trial judges who are to be triers of fact. In Shields v. Thunem (Mont. 1986), [220 Mont. 449,] 716 P.2d 217, 219, 43 St.Rep. 518, 521, we held:

“[WJhere a judge is to be the trier of fact, and he participates in pre-trial settlement negotiations which subsequently fail, he should, upon request, disqualify himself from sitting as the trial judge.” (Emphasis added.)

Shields is clear that before this Court will find a district court in error for failure to remove itself in such a situation, a request for disqualification must be made. We see no reason to alter that rule in this case, especially in the absence of a record of the pre-trial conference. If the actions of the District Court judge were truly as egregious as Husband now claims, his obvious remedy would have been to move to have the judge disqualify himself. It is no defense that Husband was excused from requesting disqualification since the Shields decision came down after the trial in this case. We find no error in this issue.

Ill

Husband next challenges the District Court’s grant of Wife’s motion in limine, excluding certain evidence from trial. These motions were in response to the Husband’s attempt to introduce as evidence Wife’s inability to balance her checkbook and an incident while Wife was employed by the K-Mart Corporation in 1981 in which she was accused of theft. The District Court granted Wife’s motions on the grounds that this evidence was not relevant to the custody determination. See Rule 402, M.R.Evid.

In determining the relevancy of the evidence, a trial court is not guided by any fixed rules. Rather, the nature of the evidence and the circumstances of the particular case must control. The trial court’s determination of relevancy is subject to review only in the case of manifest abuse. Preston v. McDonnell (1983), 203 Mont. 64, 659 P.2d 276, 277, 40 St.Rep. 297, 299.

Here, the District Court did not abuse its discretion. Case law in this state has established a line of precedent moving away from the policy of admitting evidence of misconduct which did not effect the relationship of a custodian with the child. Solie v. Solie (1977), 172 Mont. 132, 136-37, 561 P.2d 443, 446; Foss v. Liefer (1976), 170 Mont. 97, 102-03, 550 P.2d 1309, 1312. We hold the District Court did not err by refusing admission of Wife’s alleged theft and accounting difficulties.

IV

Next, Husband contests the District Court’s award of attorney’s fees to K-Mart. In an effort to investigate more fully the circumstances surrounding Wife’s alleged theft, Husband had a subpoena duces tecum served upon K-Mart commanding that its personnel manager appear for testimony with all relevant records. Wife, in addition to filing her motion in limine seeking to exclude this evidence, also sent a letter to K-Mart stating that production of any documents or testimony without a court order might well constitute a violation of Wife’s right to privacy or a breach of the employer’s implied duty of good faith and fair dealing.

K-Mart ultimately filed with the District Court, pursuant to Rule 26(c), M.R.Civ.P., a motion for protective order, seeking guidance from the court as to Husband’s requested discovery. During a telephonic conference held on January 14, 1986, the parties’ attorneys stipulated that K-Mart’s attorney could orally summarize the information he obtained in an interview with the proposed deponent. After hearing the summary, the court concluded that the issue was not relevant, granted Wife’s motion in limine, and refused to allow Husband to make further offer of proof on this issue. Subsequently, on January 31, 1986, the District Court, pursuant to Rule 37(a)(4), M.R.Civ.P., granted K-Mart’s motion for attorney’s fees.

Rule 37(a)(4), M.R.Civ.P., provides that:

“If the motion is granted, the court shall . . . require the party . . . whose conduct necessitated the motion ... to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees . . .”

In this case, the District Court never actually granted K-Mart’s motion for protective order. As noted, the court disposed of this line of discovery when it granted Wife’s motion in limine. Nonetheless, the court by granting the Wife’s motion in limine in effect granted K-Mart’s motion for a protective order. K-Mart is therefore entitled to its attorney’s fees under Rule 37(a)(4), M.R.Civ.P.

V

Finally, Husband contests the District Court’s award of attorney’s fees and costs to Wife. The District Court found that Wife’s reasonable attorney’s fees amounted to $10,880 and Husband’s, $4,200. The court further found that Wife was without means to pay for her attorney’s fees, so it listed both Husband’s and Wife’s attorney’s fees as liabilities to be paid out of the marital estate. The court then subtracted these and all other liabilities from the marital estate to find a net marital estate. Finally, the court awarded Husband the marital estate, but required him to pay all liabilities and to pay the Wife one-half the net.

The effect of the court’s apportionment of the marital assets and liabilities was to have the Husband pay one-half of Wife’s attorney’s fees and vice versa. Because each party is to receive one-half the net marital estate, each liability subtracted from the gross marital estate costs each party one-half the amount of each liability.

The disposition of a marital estate — in which the parties’ attorney’s fees were included — is largely within the discretion of the District Court. See In re the Marriage of Morse (Mont. 1985), [217 Mont. 339,] 708 P.2d 559, 560, 42 St.Rep. 1235, 1237. This Court will not disturb the decision of the District Court absent a clear abuse of discretion. We do not find that the District Court committed clear abuse of discretion in its disposition of the marital estate.

This, however, does not end our discussion. Husband argues that even if the parties’ attorney’s fees were properly included within the marital estate, Wife’s claim for attorney’s fees were not proven to be necessary or reasonable. Reading Wife’s testimony in whole, we are not persuaded that the District Court erred in its finding that Wife had inadequate means of paying her attorney’s fees. And as for the reasonableness of the amount, we note that Husband chose neither to object nor to cross examine either Wife as she testified on this matter at trial or Wife’s counsel during a post-trial conference during which this issue was discussed and no record was made thereof. Where Husband was a participant in the conference and did not object and the record is not perfected, we will not hold a District Court in error. In re the Marriage of Purkett (Mont. 1986), [222 Mont. 225,] 721 P.2d 349, 351, 43 St.Rep. 1217, 1219.

Finally, the District Court ordered Husband to pay Wife’s court costs of $475.64 and the fee of Wife’s accountant totaling $75. We find no error in the award of the accountant’s fees; Mr. Koeke testified as to his statement for professional services. Again the record has not been perfected as to the court costs. For the same reasons that we uphold the court’s grant of attorney’s fees, we uphold the award of costs.

Affirmed.

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

      . For an excellent discussion of this point, see Cooper v. Cooper (1984), 99 N.J. 42, 491 A.2d 606, 616 (Schreiber, J., concurring).


text:
    In re the MATTER OF CHILD SUPPORT, MARY ANN ISAACS, n/k/a/ Kurtz, Petitioner and Respondent, v. MURR ISAACS, Respondent and Appellant.
    No. 86-329.
    Submitted on Briefs Sept. 25, 1986.
    Decided Dec. 9, 1986.
    728 P.2d 1345.

      D. Michael Eakin and Russell LaVigne, Montana Legal Services, Helena, for respondent and appellant.
    J. Dennis Corbin, Miles City, for petitioner and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from an order of the District Court for Yellowstone County, granting $150 per month in child support to the father. We remand to the District Court for clarification.

The issues are:

1. Did the District Court abuse its discretion by granting an amount of child support which is less than the amount determined under the Carlson formula and less than the boys would be entitled to under Aid to Families with Dependent Children (AFDC)?

2. Did the District Court err by failing to make adequate findings as to how the amount of child support was determined?

The parents marriage was dissolved in 1976. The mother was awarded sole custody of younger son, Charles, and the father was given sole custody of the older son, William. Both parties were to provide support for the child in their custody. The father was also ordered to pay the mother $75 per month for the support of Charles.

In December 1985 Charles was found to be a youth in need of care and was removed from his mother’s custody and placed in his father’s custody. That court order stated that “any determination as to what, if any, support should be paid by the boy’s natural mother to the boy’s natural father for his care, should be determined in the Court of original jurisdiction in Yellowstone County.” Shortly thereafter, the father filed his petition for child support, and in March 1986 he moved for temporary child support. He asked for $180 per month for each boy.

At the hearing, the mother’s monthly income was established as between $800 and slightly over $900. The father testified that he had been laid off from his job at which he earned $1,289.90 per month and was presently receiving $644 per month in unemployment benefits. The District Court ordered the mother to pay $150 per month in child support until Charles reaches the age of majority. The father appeals.

I

Did the District Court abuse its discretion by granting an amount of child support which is less than the amount determined under the Carlson formula and less than the boys would be entitled to under Aid to Families with Dependent Children (AFDC)?.

The parents agree that child support must be determined in accordance with Section 40-4-204(1), MCA:

“In a proceeding for dissolution of marriage, legal separation, maintenance, or child support, the court may order either or both parents owing a duty of support to a child to pay an amount reasonable or necessary for his support, without regard to marital misconduct, after considering all relevant factors, including:
“(a) the financial resources of the child;
“(b) the financial resources of the custodial parent;
“(c) the standard of living the child would have enjoyed had the marriage not been dissolved;
“(d) the physical and emotional condition of the child and his educational needs;
“(e) the financial resources and needs of the noncustodial parent; and
“(f) for the purposes of determining a minimum amount for support, the amount received by children under the AFDC program, as defined by 53-2-702.”

Modification of child support must comply with Section 40-4-208(b), MCA:

“Whenever the decree proposed for modification contains provisions relating to maintenance or support, modification under Subsection (1) may only be made:
“(i) upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable; or
“(ii) upon written consent of the parties.”

The court’s findings and conclusions do not specify the statutes employed in rendering its decision. After making findings concerning the custody of the children and the income of both parents, the District Court made this finding:

“7. The present circumstances of petitioner, in the way she is supporting her present family, has the effect, to at least some degree, of placing support of her current husband ahead of supporting her children. Some realignment of priorities in that regard appears appropriate.”

The court concluded:

“1. That the respondent is the legal custodian of the two minor children of the parties.
“2. That the petitioner is financially able to contribute to the support of said minor children.
“3. That based upon the incomes of the parties and the needs of the children, the petitioner, MARY ANN KURTZ, is able to contribute the amount of $150.00 as child support for the minor children, commencing June 1st, 1986, and on the 1st day of each month thereafter, until the youngest of the children shall have attained majority or otherwise become emancipated.”

The mother contends that the father failed to meet the criteria set forth in Section 40-4-208, MCA, and that therefore no child support could be awarded for William. It is true that the father did not allege and the District Court did not specifically state that there was a change of circumstances so that the original support decree is now unconscionable. However, it is obvious that the change of custody of Charles was a changed circumstance so substantial and continuing as to make the original child support terms unconscionable.

The father states that the order for $150 per month in child support does not comply with the formula set forth in In re Marriage of Carlson (Mont. 1984), [214 Mont. 209,] 693 P.2d 496, 41 St.Rep. 2419. That formula sets the child support amount based on the ratios of the parents’ incomes as they relate to the total needs of the child. The father argues that under that formula, even if his prelayoff income rather than his unemployment income was used, the wife would be required to pay child support of $287 per month, to meet the needs of the boys as determined by the amounts of AFDC, food stamps, and Medicaid to which they would be entitled. However, the formula in Carlson was offered as a guideline, not a requirement. Also, this Court has never required that children’s needs be set at the total of AFDC, food stamps, and Medicaid amounts for that number of children. The statutory standards control.

The father also states that the amount of child support ordered by the court does not provide support for the children in an amount at least equal to what they would be entitled to under the AFDC program. He points out that the AFDC amount must be considered under Section 40-4-204(1) (f), MCA, and states the monthly AFDC amount as $354. Actually, that is the amount for two children and an adult. The amount for two children is $104 per month. Section 46.10.403(4) (b), A.R.M. The court’s support amount exceeds that.

We conclude that the District Court did not err on either of these grounds.

II

Did the District Court err by failing to make adequate findings as to how the amount of child support was determined?

The father cites Hansen v. Jurgens (Mont. 1986), [222 Mont. 345,] 722 P.2d 1151, 43 St.Rep. 1316, in which we remanded findings and conclusions for clarification of the origin of the amount set for child support:

“Because the [child support] figure appears inconsistent with other relevant findings supported in the record and its origin is not clear from the record on appeal, this Court remands the original District Court order to the . . . judge for clarification on this point.” Hansen, 722 P.2d at 1155.

Here, the District Court stated that it based its order on the incomes of the parties and the needs of the children. The court received into evidence tables of U.S. Department of Agriculture estimates of the costs of raising a child. It made specific findings as to the income of the parents, but nowhere in the findings and conclusions does the court set forth any statement of the needs of the children. As was true in the Hansen case, the origin of the child support figure is not clear from the record. A child support amount cannot be set or reviewed without a determination of the needs of the children. Accordingly, we remand to the District Court for clarification of the findings, conclusions and order.

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


text:
    LEWIS & CLARK COUNTY, Plaintiff and Respondent, v. STATE OF MONTANA, DEPARTMENT OF COMMERCE, and State of Montana, Department of Revenue, Defendants and Appellants.
    No. 86-289.
    Submitted Sept. 18, 1986.
    Decided Dec. 10, 1986.
    728 P.2d 1348.

      R. Bruce McGinnis, Dept, of Revenue, Richard M. Weddle, Dept, of Commerce, Helena, for defendants and appellants.
    Mike McGrath, Co. Atty., Helena, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The Department of Commerce and Department of Revenue appeal a Lewis and Clark County District Court judgment in favor of Lewis and Clark County.

Two issues are presented on appeal:

(1) Whether the District Court erred in determining that under Section 61-3-536, MCA, the State must reimburse the County for revenue lost by the County’s erroneous calculation under the statute?

(2) Whether the District Court erred in granting the County’s request for a declaratory judgment?

We affirm.

In 1981, the Montana Legislature changed the law for taxing automobiles and light trucks from a property tax system to a flat fee system. The fees to be paid upon each licensed vehicle did not equal the amount of revenue previously raised by the property tax. The legislature appropriated $3,000,000 from the general fund to make up for this shortfall. In essence, the State was agreeing to reimburse the county governments on a dollar for dollar basis for revenues lost by repeal of the property tax system. In 1983, the legislature transferred the method of funding the reimbursement to the local government unit by creating the Local Government Block Grant Program. The legislature appropriated $3,000,000 from the general fund and earmarked one-third of the oil severance tax for the program.

The formula for reimbursing the counties was codified into Section 61-3-536, MCA, which reads as follows:

“61-3-536. State aid for local government. (1) Each county treasurer shall compute:
“(a) the total amount received during the period from January 1, 1981, to December 31, 1981, for property taxes on automobiles and trucks having a rated capacity of three-quarters of a ton or less, denoted CT;
“(b) the total amount that would have been received during the same period if the license fee system, excluding the block grant fee allocated to local governments under 61-3-509(3), had been in effect, denoted CF; and
“(c) the number of light vehicles registered in the county on December 31, 1981; denoted NC.
“(2) The three quantities, CT, CF, and NC, shall be certified to the department of revenue by February 1, 1982. The department shall compute for each county a quantity called county revenue loss, denoted CRL, and county loss per vehicle, denoted CLV, and defined as follows:
“(a) CRL = larger of:
“(i) 0; or
“(ii) CT -CF;
“(b) CLV = CRL/NC.
“(3) In order to be eligible for reimbursement payment, a light vehicle must be such that it would have been subject to ad valorem tax if it had been registered prior to January 1, 1982.
“(4) Prior to February 1 of year denoted Y, the county treasurer shall determine and certify to the department the number of eligible light vehicles registered in the county on December 31 of the prior year, denoted NC(Y). Prior to March 1 of year Y, the department of revenue shall transmit to the department of commerce the amount of CLV x NC(Y) for each county.
“(5) On March 1 of year Y, the department of commerce shall transmit to each county treasurer a warrant in the amount of CLV x NC(Y).
“(6) Upon receipt of the payment provided for in subsection (5), the county treasurer shall credit the payment to a motor vehicle suspense fund and, at some time between March 15 and March 30, shall distribute the payment in the same manner as funds are distributed to the taxing jurisdictions as provided in 61-3-509.”

The counties were responsible for three figures: (1) the amount of money received by the county from the property tax on automobiles and light trucks in 1981; (2) the amount of money the county would have collected had the fee system been in effect in 1981; and (3) the number of registered automobiles and light trucks in 1981. The three figures were then certified to the Department of Revenue which arrived at the loss per vehicle by plugging the figures into the formula described in the statute. The loss per vehicle figure would remain constant; in future years the counties were only required to submit the number of registered vehicles to the State to become eligible for reimbursement.

The Lewis and Clark County Treasurer, pursuant to Subsection (l)(b) of Section 61-3-536, MCA, miscalculated the amount the County would have received in 1981 if the fee system had been in effect at that time. The Treasurer estimated that the County would have received $1,827,219 under the fee system in 1981, rather than $1,370,988, the correct figure. Because the County submitted an incorrect figure, the loss per vehicle figure calculated by the State came to $30.21, instead of the accurate result of $39.91. The County discovered its mistake in 1983 and certified the correct figure to the State. The State refused to allow the County to submit the new figure, arguing that under Section 61-3-536 it could not authorize a change in the figures. The County filed suit on January 22, 1985, claiming damages of $1,016,957 for the years 1982 and 1983. it alleges in its brief that when the shortfalls of 1984 and 1985 are included, it has been damaged to the amount of $1,814,821.50.

The District Court entered judgment in favor of the County for $1,016,957 and declared the loss per vehicle figure for Lewis and Clark County to be $39.91.

The standard of review was stated in Lima School District No. 12 v. Simonsen (Mont. 1984), [210 Mont. 100,] 683 P.2d 471, 476, 41 StRep. 944, 950.:

“In reviewing findings of fact in a civil action tried without a jury, this Court may not substitute its judgment in place of the trier of facts. Our function is confined to determining whether there is substantial credible evidence to support the court’s findings. We view the evidence ‘in a light most favorable to the prevailing party, recognizing that substantial evidence may be weak or conflicting with other evidence yet still support the findings.’ Lacey v. Herndon (Mont. 1983), [205 Mont. 379,] 668 P.2d 251, 255, 40 StRep. 1375, 1380.”

The judicial function in construing and applying statutes is to effect the intention of the legislature. In determining legislative intent, the Court looks first to the plain meaning of the words used in the statute. If intent cannot be determined from the context of the statute, we examine the legislative history. Thiel v. Taurus Drilling Ltd. 1980-11 (Mont. 1985), [218 Mont. 201,] 710 P.2d 33, 35, 42 St.Rep. 1520, 1522; Dorn v. Bd. of Trust, of Billings Sch. Dist. (Mont. 1983), [203 Mont. 136,] 661 P.2d 426, 430, 40 St.Rep. 348, 352. It is a further fundamental rule of statutory construction that the unreasonableness of the result produced by one interpretation is reason for rejecting it in favor of another that would produce a reasonable result. Johnson v. Marias River Elec. Co-Op., Inc. (Mont. 1984), [211 Mont. 518,] 687 P.2d 668, 671, 41 St.Rep. 1528, 1532.

Upon review of the statute in question, we are unable to ascertain a definitive legislative intent. Therefore, an examination of the legislative history will be necessary. The statement of intent to Section 61-3-536, MCA, provides in pertinent part:

“It is the purpose of this act to replace the present property tax on automobiles in light trucks (% ton capacity or less) by a license fee based on the age and weight of the vehicle. It is intended that this system commence with registration of vehicles on January 1, 1982.
“The financial aid provisions of the bill are designed to provide a mechanism to give financial relief to local governments due to the loss of revenue from automobile and light truck property tax.”

In addition, the minutes of the February 16, 1981, meeting of the Senate Taxation Committee reflect a legislative intent to reimburse the counties “dollar for dollar for what they lose” by repeal of the property tax system. (Taxation Committee, Montana State Senate, February 16, 1981, at 2.) The minutes of the April 9, 1981 meeting of the House Taxation Committee express a similar intent. In that meeting, Terry Cohea, the management and budget analyst, commented that “the point of the bill was to reimburse local governments for every dollar they would lose” by the change to a flat fee system. (Taxation Committee, Montana State House, April 9, 1981, at 11-12.) This implies that accurate figures would be certified to the State and would become part of the fixed formula to be used in all succeeding years to determine the amount of reimbursement for a particular county. One can imagine the economic consequences to a county submitting inaccurate figures to the State. In this case, the loss per vehicle figure was off by $9.70 in favor of the State. When that figure was used in the statutory formula the County realized a significant revenue loss for the year 1982. Since then the County’s revenue loss has increased by $9.70 for every additional vehicle registered in the County.

A statute will not be interpreted to defeat its evident object or purpose; the objects sought to be achieved by the legislation are prime consideration in interpreting statutes. Montana Wildlife Federation v. Sager (Mont. 1980), 620 P.2d 1189, 1199, 37 St.Rep. 1897, 1907.

From our reading of the legislative history of Section 61-3-536, MCA, it is clear that the law was intended as a tax relief measure for owners of automobiles and light trucks and that the counties were not supposed to lose any revenue from implementation of the law. The predicament in which the County now finds itself was not envisioned; to leave the situation as it stands would defeat the obvious purpose of Section 61-3-536, MCA.

The State argues that under Section 61-3-536 it need only receive the data certified to it as being correct and manipulate that data to come up with a reimbursement figure, bélieving that it is powerless to authorize any corrections to the certified figures. In answering this argument, we refer to Bay v. State, Dept. of Admin. (Mont. 1984), 688 P.2d 1, 4, 41 St.Rep. 1725, 1729:

“[Although we give deference to the interpretation given a statute by the officers or agency charged with its administration, Dept. of Rev. v. Puget Sound Power and Light Company (1978), 179 Mont. 255, 587 P.2d 1282, this does not mean that courts must rubber-stamp any interpretation the agencies may give a statute.”

We conclude that there is substantial credible evidence to support the lower court’s findings. The District Court did not err in determining that under Section 61-3-536, MCA, the State must reimburse the County for revenue lost by the County’s erroneous calculation under the statute.

As to whether the District Court erred in granting the County’s request for a declaratory judgment, a discussion of the Uniform Declaratory Judgments Act is appropriate. Section 27-8-102, MCA, delineates the purpose and object of a declaratory judgment:

“This chapter is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and it is to be liberally construed and administered.”

Section 27-8-202 provides as follows:

“Any person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.”

The County had the right to have the District Court construe Section 61-3-536, MCA, and thereby determine the correct loss per vehide figure to be used by the State. The lower court ruled that the correct loss per vehicle was $39.91.

The judgment of $1,016,957 and the determination of the correct loss per vehicle figure of $39.91 is affirmed.

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