author: JUSTICE ERDMANN JUSTICE TRIEWEILER

text:
    MISCHELLE SCHELSKE and RICK SCHELSKE, Plaintiffs and Appellants, v. CREATIVE NAIL DESIGN, INC., a foreign corporation; OPI PRODUCTS, INC., a foreign corporation; CLAIROL, INC., a foreign corporation, HELENE CURTIS, INC., a foreign corporation; NEXXUS PRODUCTS COMPANY, a foreign corporation; THE ADU COMPANY, a foreign corporation; REVLON PROFESSIONAL PRODUCTS, INC., a foreign corporation; COSMETIC ARTS, a foreign corporation; AMERICAN INTERNATIONAL, a foreign corporation; SEBASTIAN INTERNATIONAL, a foreign corporation; UNIT CHEMICAL CORPORATION, a foreign corporation; PAUL MITCHELL (BOCCHI LABORATORIES); MATRIX ESSENTIALS, INC., a foreign corporation; MALIBU 2000, a foreign corporation; HIGHLAND CORPORATION, a foreign corporation; CAPITAL HILL MALL PARTNERSHIP, a Utah limited partnership; JC PENNEY COMPANY, INC., a foreign corporation; PALMER DUNCAN CONSTRUCTION COMPANY, a Montana corporation; and DOES and ROES ONE THROUGH TEN, Defendants and Respondents.
    No. 96-153.
    Submitted on Briefs October 10, 1996.
    Order Denying Rehearing April 1, 1997.
    Decided January 2, 1997.
    54 St.Rep. 21.
    280 Mont. 476.
    933 P.2d 799.

      See C.J.S. Products Liability § 80.

      For Appellant: John C. Doubek; Small, Hatch, Doubek & Pyfer; Helena.
    For Respondents: Randy J. Cox; Boone, Karlberg & Haddon; Missoula; Susan P. Roy; Garlington, Lohn & Robinson; Missoula; Ronald F. Waterman; Gough, Shanahan, Johnson & Waterman; Helena.
   JUSTICE ERDMANN

delivered the opinion of the Court.

Mischelle and Rick Schelske appeal from the amended order granting summary judgment in favor of the defendant manufacturers as entered by the First Judicial District Court, Lewis and Clark County. We affirm.

The issue on appeal is as follows:

Did the District Court properly grant summary judgment in favor of the defendants?
A. Did the District Court correctly conclude that the Schelskes failed to comply with the Case Management Order?
B. Did the District Court err in determining that the Schelskes cannot exclusively rely upon Material Safety Data Sheets to establish a prima facie claim of product liability?
C. Did the District Court err in not accepting the Schelskes’ legal assertion that once the plaintiffs produce evidence of multiple product “indivisible injury” the causation element of the claimants’burden of proof is satisfied and the burden shifts to the manufacturer to prove that their product did not cause injury?

FACTS

Mischelle Schelske worked as a beautician at the JC Penney store in Helena from September 4,1984, until October 1992, when she left her management position at the salon. On May 11, 1994, Mischelle and her husband Rick filed suit against fourteen cosmetic manufacturing and marketing companies, two construction companies, and the owner of the beauty salon space. The complaint alleges her work exposed her to different substances which allegedly were toxic and that, as a result, commencing in the summer of 1992, she began to experience a variety of pains, swelling, and digestive disorders. She states in her complaint that by December 1992, she was totally unable to continue her work at the salon because of her severe symptoms and debilitating injuries and that she has since been unable to hold gainful employment and has sustained permanent injuries. The Schelskes assert that each cosmetic manufacturer designed, manufactured, and sold products which were defective and that each product directly and proximately damaged them.

On September 28, 1994, the District Court conducted a preliminary pretrial hearing. Pursuant to Rule 16, M.R.Civ.P., the District Court issued a Case Management Order (CMO). The CMO, dated October 11, 1994, was designed to help focus the extensive discovery and to aid in the handling of the complex, multi-party litigation. The Schelskes and the defendants agreed to the issuance of this order. The CMO granted the Schelskes sixty days to serve discovery requests on the defendants, but limited this to obtaining information regarding the contents of the products used by Mischelle, or those which she claims to have been exposed to in the salon. All other discovery was stayed pending compliance with the CMO.

The CMO then provided that within ninety days from the entry of the order, the Schelskes were required to provide a list of products, the circumstances of the alleged exposure, an identification of each specific chemical which allegedly caused harm, and a physician’s opinion of a causal connection between exposure and injury. The CMO required that the affidavit from the physician stating his or her opinion must: (1) list all injuries, illness, or conditions suffered by Mischelle; (2) specify the chemical(s) that caused each illness, injury or condition; and (3) state the scientific bases for the physician’s opinion. Specifically the court stated in its order that,

It will not be sufficient for the affidavit to state a ‘laundry list” of injuries and chemicals. Each injury, illness or condition must be itemized and specifically linked to the chemical or chemicals believed to have caused that particular injury, condition or illness.

On January 9, 1995, the Schelskes filed the affidavit of Jack Thrasher, a toxicologist from New Mexico. On January 30, 1995, the cosmetic manufacturers moved to strike Thrasher’s affidavit alleging that it failed to comply with the CMO. On the same date the Schelskes filed a notice of filing discovery requests to all defendants. This discovery was not conducted within the sixty days as provided in the CMO, thus the manufacturers resisted the discovery and moved for a protective order.

A consolidated hearing for all pending motions was set for May 25, 1995. On April 13,1995, prior to the hearing but after the ninety days provided for in the CMO, the Schelskes filed the affidavit of Curt G. Kurtz, M.D., and then on April 28, 1995, they also filed the affidavit of Gunnar Heuser, M.D. The defendants moved to strike both affidavits, alleging that neither came close to complying with the CMO. At the hearing, the District Court determined that the affidavits did not meet the requirements of the CMO because they did not list which chemicals produced which symptoms and stated that if the court were to accept them it would have the effect of reversing the burden of proof. The motions to strike were taken under advisement and the motion for protective order was granted as to the Schelskes’ untimely discovery requests. The court gave the Schelskes three additional months to comply with the CMO.

On August 18, 1995, the Schelskes filed a second affidavit by Dr. Heuser which included approximately 100 Material Safety Data Sheets (MSDS). Manufacturers are required by federal law to obtain or develop MSDS for each chemical they produce which potentially can cause a health hazard in order to provide information to employees about the hazards of the chemicals being produced. On October 23, 1995, after consideration of Dr. Heuser’s statement, the court determined that it did not comply with the CMO as an affidavit from a physician listing all of Mischelle’s injuries, illnesses, and conditions caused by the exposures, specifying the chemicals which caused each injury, and medically substantiating the physician’s opinion as to these matters. The court concluded that the Schelskes had not complied with the CMO within the three-month extension period previously granted.

The cosmetic manufacturers therefore moved to strike Dr. Heuser’s affidavit and moved for summary judgment asserting that the failure to comply with the CMO and the fundamental failure to offer any proof of a defective product was fatal to the Schelskes’ case. A hearing was set for January 18, 1996. On January 16, 1996, the Schelskes filed a third affidavit by Dr. Heuser. In its decision and order the court stated that upon reviewing all of Dr. Heuser’s affidavits it concluded that they did not satisfy the requirements of the CMO and therefore granted the defendants’ motion to strike. The District Court also granted the defendants’ motion for summary judgment. The District Court stated that the Schelskes had not even remotely complied with the provisions of the Case Management Order and as a result there was a failure to allege a prima facie products liability cause of action as set forth in § 27-1-719(2), MCA. The Schelskes appeal this decision and order.

ISSUE

Did the District Court properly grant summary judgment in favor of the defendants?

We review appeals from summary judgment rulings de novo. Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When reviewing a district court’s grant of summary judgment, we apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. Summary judgment is proper only when no genuine issue of material fact exists and when the moving party is entitled to judgment as a matter of law. Brown v. Demaree (1995), 272 Mont. 479, 901 P.2d 567. This Court looks to the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits to determine the existence or nonexistence of a genuine issue of material fact. Ulrigg v. Jones (1995), 274 Mont. 215, 907 P.2d 937.

A. Did the District Court correctly conclude that the Schelskes failed to comply with the Case Management Order?

The District Court’s issuance of the CMO was wholly within its discretion as a management tool contemplated by Rule 16, M.R.Civ.P. This order was patterned after a case management order issued by the United States District Court, District of Montana, in Eggar, et al. v. Burlington Northern R.R. Co. (D. Mont. 1991), 1991 WL 315487, aff’d Claar v. Burlington Northern R.R. Co. (9th Cir. 1994), 29 F.3d 499. The CMO in the present case required the Schelskes to establish the prima facie elements of their products liability claim. Failure to comply with the order would therefore result in a failure to establish that any genuine issues of material fact existed as to the products liability claim, making the case proper for summary judgment. This Court will therefore review the record de novo to determine whether any genuine issues of material fact exist as to the elements of the Schelskes’ products liability claim as required by the CMO.

Section 27-1-719(2), MCA, codified the product liability common law in Montana. This section provides:

A person who sells a product in a defective condition unreasonably dangerous to a user or consumer or to the property of a user or consumer is liable for physical harm caused by the product to the ultimate user or consumer or to his property if:
(a) the seller is engaged in the business of selling such a product; and
(b) the product is expected to and does reach the user or con-sinner without substantial change in the condition in which it is sold.

This Court has previously held that in a products liability action the plaintiff must show: (1) the plaintiff was injured by the product; (2) the injury occurred because the product was defective and unreasonably dangerous; and (3) the defect existed when it left the hands of the defendant. Brothers v. General Motors Corp. (1983), 202 Mont. 477, 480, 658 R2d 1108, 1109; Brown v. North American Mfg. Co. (1977), 176 Mont. 98, 105, 576 P.2d 711, 716.

In sum, the Schelskes were required by the CMO to establish the following facts in order to proceed with a prima facie claim of products liability: (1) product identification; (2) use and exposure; and (3) causation linking product defect to an identifiable injury.

The first element required by the CMO was a statement specifically identifying each product by manufacturer that Mischelle claims to have caused her harm. The affidavits submitted by the Schelskes listed numerous products that may have “potential adverse health effects.” However these affidavits, many of which include over 150 pages of MSDS, do not sufficiently identify the specific products Mischelle claims to have been exposed to in her work at the salon.

The Thrasher affidavit filed on January 9, 1995, includes a list of 153 products under the heading of “Products With Potential Human Adverse Health Effects.” Although Thrasher’s affidavit did not state that all 153 products listed were actually claimed by Mischelle to have caused her harm, this could possibly be inferred from the affidavit. Thrasher states that he had been requested “by Plaintiffs’ counsel to address a number of products which plaintiff Mischelle Schelske has indicated she has used or come into contact with during the course of her working in the beauty salon.” Regardless of whether Thrasher’s affidavit only addresses products Mischelle allegedly claims to have come into contact with, many of the products were listed in generic terms such as “shampoos” or “bleach powders.” Without specific product names, which would have provided the defendants with the necessary information to allow them to defend against the Schelskes’ claim, the affidavit fails to meet the requirements of the CMO.

Dr. Heuser’s first affidavit does not provide any additional information as to specific product names that Mischelle alleges to have caused her harm. Heuser’s second affidavit, filed August 18, 1995, states that he has considered the list of products which Mischelle claims to have been exposed to; however, this list was not provided. The third affidavit of Dr. Heuser, submitted two days prior to the hearing on the motion for summary judgment, comes closest to complying with the CMO, but again does not provide a complete list of each product Mischelle alleges to have harmed her. The affidavits submitted, therefore, do not substantially comply with the CMO because of their failure to state each specific product that Mischelle Schelske personally identified as having caused her harm.

The second element required by the CMO to form the basis of a prima facie products liability claim required Mischelle to specifically describe the circumstances of the alleged exposure to each of the products identified in the list required, including the time period during which she alleged exposure and the activities which resulted in the exposure. Mischelle worked at the JC Penney salon for a period of eight years. The record is devoid of any specific statement indicating the time period that each product was used by Mischelle, or the period when she came into contact with each product. In addition, the record only provides a general statement by the Schelskes that Mischelle used “each and every product on a daily basis,” and that she used the products in a manner consistent with the nature of the product. Over a period of eight years, it is reasonable to assume that some products were used for the entire period and others were used for only a limited length of time. Some products may have been used several times daily and others only on a weekly basis. It is also reasonable to assume that some products were not even available at the salon for the entire eight-year period of alleged exposure. In fact, the Schelskes admit that “[t]here may well have been some products which came on the market during the time Mischelle Schelske was employed but for the most part these products were in use the entire time she was employed.” The Schelskes clearly did not comply with the CMO by providing a statement specifically describing the circumstances of the exposure to each of the products identified as having caused harm and the time period during which each of these products were used.

The third and decisive element which the Schelskes failed to meet, as required by the CMO, is a physician’s affidavit identifying specific injuries, specific chemicals which caused the injuries, and the scientific or medical basis for a causal connection between chemical exposure and injury. The Thrasher affidavit does not satisfy the initial threshold requirement, as Thrasher is not a physician. The affidavit of Dr. Kurtz only states Kurtz’s acceptance of the statements made by Thrasher in his affidavit. It then proceeds to ‘laundry list” symptoms which Mischelle suffers, and states that she suffers from reactive airway disease and other conditions which have not yet surfaced or been diagnosed. This affidavit is clearly insufficient. The lengthy affidavits submitted by Dr. Heuser, however, require closer scrutiny.

Heuser’s first affidavit does not enumerate any specific injuries or illnesses, or state any specific chemicals alleged to have caused Mischelle harm. Heuser’s second affidavit also fails to meet the requirements of the CMO. In this affidavit, Dr. Heuser states that chemicals in the defendants’ products are “associated with” certain listed diseases. Dr. Heuser contends that:

Chemicals in defendants’ products associated with lung disease, including irritation of mucous membranes, storage disease, asthma, reactive airway dysfunction syndrome, sensitization, atelectasis, bronchiectasis, interstitial pulmonary fibrosis and lung cancer. Mischelle Schelske has exhibited symptoms compatible and suggestive of all the foregoing, with the exception that lung cancer has not yet been diagnosed. The list of diseases and injuries below are a part of what Ms. Schelske suffers from in my medical opinion.

(Emphasis added.) Dr. Heuser’s statement only asserts an association between the chemicals in the defendants’ products and the diseases of which Mischelle has exhibited symptoms. He does not claim that Mischelle actually suffers from those diseases or injuries, but rather that she has exhibited symptoms which are compatible and suggestive of those problems. The list that Dr. Heuser provides is a compilation of the data from the MSDS and is merely a collection of potential consequences from contact with the chemicals in the products and does not describe the particular injuries suffered by Mischelle. Furthermore, Dr. Heuser clearly asserts that the list of diseases and injuries provided is not an exhaustive list and is only a part of what Mischelle suffers from. The CMO specifically required that the physician’s affidavit list “all” injuries, illnesses, or conditions suffered by Mischelle. The affidavit is also deficient in that it does not identify each chemical that caused each injury but lists generic terms such as ‘hair sprays” and “solvents.”

The third affidavit filed two days prior to the hearing on the motion for summary judgment speaks to some of the deficiencies of his second affidavit as noted by the court. Dr. Heuser complains in his affidavit, as did counsel for the Schelskes in a previous affidavit, that he is unable to identify certain undisclosed chemicals in some of the products such as ‘hair sprays.” Although the Schelskes were limited in their discovery at this time due to concerns regarding trade secrets, they still failed to identify the known disclosed chemicals and connect them to particular injuries or illnesses. In his third affidavit, Heuser again states that the products are “associated” with certain diseases and that Mischelle exhibits symptoms “compatible with” certain illnesses. These affidavits clearly do not comply with the CMO. The allegations made within the affidavits are vague and conclusory without providing the specific causation linking the product defect to an identifiable injury. This Court has consistently held that speculative and conclusory statements are not a sufficient basis on which to raise a genuine issue of material fact. Ulrigg, 907 P.2d at 941; Miller v. Herbert (1995), 272 Mont. 132, 137-38, 900 P.2d 273, 276.

The requirements of the CMO were explicitly detailed to the Schelskes in both the written order and orally during the pretrial proceedings. The Schelskes did not serve their discovery within the sixty days provided by the CMO. They did not provide the information required by the CMO within ninety days from entry of the order. On May 25, 1995, the court determined that the CMO had not been complied with and specifically informed the Schelskes again what was necessary for compliance. The court granted the Schelskes an additional three months from May 25,1995, to comply with the order. On January 16, 1996, the Schelskes made a last attempt to comply with the order, which was well beyond the additional three months granted by the District Court, and additionally, did not fulfill the requirements of the CMO. We therefore determine that the District Court was correct in concluding that the Schelskes did not comply with the Case Management Order.

B. Did the District Court err in determining that the Schelskes cannot exclusively rely upon Material Safety Data Sheets to establish a prima facie claim of product liability?

The Schelskes largely premise their assertion that they established a prima facie claim of products liability on the Material Safety Data Sheets submitted with the affidavits. They argue that the existence of these MSDS demonstrate that the manufacturers’ products are toxic or hazardous. The Schelskes, in fact, seemingly urge this court to adopt a standard imposing absolute liability on any manufacturer who complies with federal law by publishing MSDS.

The publication of MSDS is pursuant to federal law and is intended to provide information to employees about the hazards of the chemicals being produced. See 29 C.F.R. § 1910.1200. The chemical manufacturers must obtain or develop MSDS for each hazardous chemical they produce or import. Ahazardous chemical is defined as one which can produce a physical hazard or health hazard. 29 C.F.R. § 1910.1200. The description of the potential toxicity of the chemical in the MSDS is based on a pure, undiluted sample of the chemical and not on the product itself.

The MSDS therefore provide no direct information regarding the possible toxicity of the products themselves and, furthermore, the MSDS do not establish that any particular product is in a defective condition and is unreasonably dangerous. See Thorton v. El. Du Pont De Nemours and Co., Inc. (11th Cir. 1994), 22 F.3d 284, 288-89. In addition, the MSDS provided with the affidavits do not link a particular product with the chemical as one ingredient, to a specific injury, illness, or condition that Mischelle suffers from. This Court declines to adopt a standard imposing absolute liability on manufacturers solely on the basis that they have placed products into the stream of commerce for which MSDS have been provided pursuant to federal law. We conclude therefore that the District Court did not err in determining that the Schelskes cannot exclusively rely upon the Material Safety Data Sheets to establish their prima facie claim of product liability.

C. Did the District Court err in not accepting the Schelskes legal assertion that once the plaintiffs produce evidence of multiple product “indivisible injury’ the causation element of the claimants’burden of proof is satisfied and the burden shifts to the manufacturer to prove that their product did not cause injury?

The Schelskes assert that the principles of joint and several liability provide the means of achieving fairness where there are multiple defendants and multiple products which contain a variety of toxic or hazardous chemicals which combine to cause injury. They argue that it is not the responsibility of the injured party to allocate the harm among various tort feasors.

The authority provided by the Schelskes for this assertion is § 52, Prosser on Torts, and § 433A, Restatement (Second) of Torts (1986). Neither of these sections absolves an injured party of the burden of first establishing causation. These sections provide only that once a defendant’s conduct has been determined to be a cause of some damage suffered by the plaintiff then issues of apportionment can arise. The proof of causation is a necessary predicate to a claimant’s burden of proof in a product liability action. See § 27-1-719, MCA. We have determined the record in this case does not provide evidence that any specific substance caused specific harm to Mischelle Schelske, and therefore we need not address the issue of apportionment as it relates to damages and not causation.

We affirm the District Court’s amended order granting summary judgment in favor of the defendants.

JUSTICES GRAY, NELSON and HUNT concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

Assuming for the purpose of this case only (because the plaintiffs have not argued otherwise), that the District Court had the authority to require that plaintiffs prove their case prior to trial, without any shifting of the burden pursuant to normal summary judgment procedures, I conclude that the plaintiffs’ affidavits, when read in combination with each other, were sufficient to establish that products produced by the defendants included toxic chemicals which contributed as causes to specific injuries sustained by Mischelle Schelske.

The Schelskes submitted affidavits from three different professionals in response to the District Court’s case management order. The first was from Jack Thrasher, Ph.D., a toxicologist from New Mexico; the second from Curt Kurtz, M.D., Mischelle’s attending physician; and the third from Gunnar Heuser, M.D., a physician with extensive experience in the effect of toxic chemical exposure.

Dr. Thrasher indicated that he reviewed the products identified by Mischelle as those with which she had come into contact during the course of her employment, and also reviewed the Material Safety Sheets pertaining to each product. He listed those products by name, manufacturer, and the chemicals included in each product. He also listed products for which the chemical components had not been adequately identified by the manufacturer and for which further information was required. He identified typical adverse effects from the types of chemicals which were included in the list and stated that in his opinion, daily exposure to a combination of these chemicals caused Mischelle’s physical ailments. He described her injuries as central and peripheral neuropathy, the presence of auto-antibodies in her immune system, and injuries to her organs, vascular system, and nervous system as a result of the auto-antibodies’ presence. In his letter attached to his affidavit, he stated that:

In short, the exposure to multiple chemicals and her symptom complex indicate that Ms. Schelske suffers from multiple organ injuries. These type of injuries have been collectively termed multiple chemical sensitivity by various clinicians.
In conclusion, Ms. Schelske’s current health problems are permanent. It is my opinion, within a reasonable degree of scientific and toxicologic probability, that her chronic daily exposure to emissions from various cosmetic products is directly related to her chronic health problems.

Dr. Curt G. Kurtz stated, in his affidavit, that he is a medical doctor practicing in Bozeman and had treated Mischelle Schelske for the past year and was, therefore, familiar with her medical condition. It was his opinion that Mischelle had suffered injuries as a result of exposure to chemicals in the work place. He stated that her injuries include reactive airway disease and multiple organ injuries. He stated that she was also being evaluated for cognitive deficits due to chemical exposure. He had reviewed the affidavit of Dr. Jack Thrasher and stated overall agreement with its contents. He stated that all of the chemicals listed in the Thrasher affidavit are toxic to some extent and likely caused or contributed to the various injuries sustained by Mischelle.

In his affidavit dated August 17, 1995, Dr. Heuser stated that during the previous month he and assorted other specialists had seen and examined Mischelle, and that based upon those examinations, and his consideration of the list of products to which she indicated she had been exposed, along with the information about those products included in the Material Safety Data Sheets, he believed that certain of the chemicals included in those products caused injuries to Mischelle. He then listed specific chemicals and the specific disease suffered by Mischelle which was associated with that chemical. He introduced the lists by stating in his affidavit that:

A list of the injuries sustained by Ms. Schelske, though not by any means an exhaustive list, is presented along with documentation from the medical literature which confirms that the symptoms and injuries sustained by Mischelle Schelske are in fact the result of repeated exposure to the said chemicals within the identified products.
He went on to state that:
Chemicals in defendants’ products [are] associated with lung disease, including irritation of mucus membranes, storage disease, asthma, reactive airway dysfunction syndrome, sensitization, atelectasis, bronchiectasis, interstitial pulmonary fibrosis and lung cancer. Mischelle Schelske has exhibited symptoms compatible with and suggestive of all of the foregoing, with the exception that lung cancer has not yet been diagnosed. The list of diseases and injuries below are part of what Ms. Schelske suffers from in my medical opinion.

(Emphasis added.)

In other words, the affidavit of Jack Thrasher, Ph.D., identified the chemical component of each of the products to which Mischelle had been exposed. The affidavit Gunnar Heuser, M.D., identified the injury that, in his opinion, Mischelle has sustained as a result of exposure to each of the chemical components. Both affidavits also stated that without further information from the manufacturers, there were some products whose chemical components were not known. However, it clearly is not correct, as the District Court concluded, that Dr. Heuser’s affidavit failed to list Mischelle’s injuries, and failed to identify chemicals which contributed as a cause of those injuries.

I conclude that the Schelskes provided all of the information that could reasonably have been provided or required at this stage of pretrial proceedings, and that that information was certainly adequate to enable the defendants to proceed with discovery by further depositions of the experts who had submitted affidavits. If further identification of specific time periods during which exposure occurred, or the nature of consequences from specific chemicals was necessary in order to defend against this case, the defendants had all of the information they needed with which to begin discovery of those details.

I therefore conclude that if the District Court ever had authority to require the plaintiffs to prove their case prior to trial in as great a detail as was required by the District Court’s case management order, then that order was satisfied by the information summarized above.

For these reasons, I dissent from the majority opinion. I would reverse the District Court order granting summary judgment to the defendants.


source: Caselaw Access Project

author: JUSTICE NELSON

license: Public Domain

text:
    IN RE THE MATTER OF REID CONNELL, Petitioner and Appellant, vs. STATE OF MONTANA, DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, CHILD SUPPORT ENFORCEMENT DIVISION, Respondent.
    No. 96-223.
    Submitted on Briefs August 8, 1996.
    Decided January 2, 1997.
    54 St.Rep. 28.
    280 Mont. 491.
    930 P.2d 88.
    See C.J.S. Divorce § 706.

      For Appellant: Richard A. Reep, Reep, Spoon & Gordon, Missoula.
    For Respondent: K. Amy Pfeifer, Department of Public Health and Human Services, Child Support Enforcement Division, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

Reid Connell appeals from the opinion and order of the Fourth Judicial District Court, Missoula County, affirming the decision of an administrative law judge denying Connell’s motion to dismiss with prejudice a child support collection action and state tax offset action filed against him. We reverse and remand.

We restate the issues on appeal as follows:

1. Has Reid Connell’s constitutional right to due process been violated under the facts of this case?
2. Did the District Court err in affirming the administrative law judge’s decision that CSED’s actions should not be dismissed under Rule 41(b), M.R.Civ.P., for failure to prosecute?

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Reid Connell (Connell) and Norma Schlenvogt (Schlenvogt) were first married on March 27,1967. During the course of their first marriage, three daughters were born in 1967, 1972 and 1974 respectively. Connell and Schlenvogt divorced on December 24,1975. They later remarried on June 3, 1977, but a divorce decree was entered by default on November 14, 1977, in the Fourth Judicial District Court, Burleigh County, North Dakota. Pursuant to this 1977 decree, the North Dakota District Court awarded Schlenvogt custody of the three minor daughters, granted Connell reasonable visitation rights and ordered Connell to pay $550.00 per month in child support. After the dissolution, Schlenvogt remained in North Dakota with the three daughters and Connell continued living in Missoula, Montana.

For approximately two years, beginning in December .1988, Schlenvogt and her current husband received public assistance, including Aid to Families with Dependant Children (AFDC), from the state of North Dakota. To receive this assistance, Schlenvogt signed a document assigning her rights to collect child support to the North Dakota Department of Human Services to begin child support collection proceedings against Connell.

After receiving an interstate referral for the enforcement of child support from the State of North Dakota, Montana’s Child Support Enforcement Division (CSED) initiated a collection action against Connell. In February 1990, CSED served Connell with a Notice of Intent to Withhold Income alleging that he was delinquent in the payment of child support for his daughters and thereby began an income withholding action against him. On June 18, 1990, the State Auditor’s office sent Connell a notice that his 1990 state warrant would be offset against the debt he owed.CSED. After deposing Schlenvogt on August 21,1990, an in-person administrative hearing was held on both matters February 15, 1991, in Missoula, Montana.

At the close of the hearing, the hearings officer established a schedule for the submission of proposed findings of fact, conclusions of law and order from the parties. Connell submitted his proposed findings and conclusions on March 21,1991. However, despite applying for and receiving several extensions of time, CSED failed to submit its proposed findings of fact, conclusions of law and order. Furthermore, the hearings officer failed to enter a decision.

It was not until almost four years after the February 1991 hearing that a new administrative law judge (ALJ) took any action to finalize this matter. On December 23, 1994, the ALJ ordered the parties to appear at a telephone conference for the purpose of submitting arguments and motions on the preparation of findings of fact, explaining that the hearings officer who initially heard this case was not available to prepare Findings of Fact, Conclusions of Law and Order in this matter because his contract expired July 1,1992. On January 11, 1995, a telephone conference was convened. During the conference, both Connell and CSED agreed that the credibility of the witnesses was material, and, therefore, the provisions of § 2-4-622(1), MCA (1993) (providing options to parties when a hearings officer is unavailable for decision), did not apply. Furthermore, Connell refused to waive compliance with this statute as allowed by § 2-4-622(2), MCA (1993). Additionally, Connell moved for default judgment against CSED in conformity with his proposed Findings of Fact, Conclusions of Law and Order, or in the alternative, to dismiss.

On July 28, 1995, following timely submission of briefs, the ALJ denied Connell’s motions and ordered a rehearing of the matter. Connell petitioned the Fourth Judicial District Court for judicial review of the ALJ’s order. After accepting Connell’s petition, the District Court affirmed the ALJ’s July 28, 1995 Order. From this judgment, Connell appeals.

STANDARD OF REVIEW

Our standard of review concerning a district court’s conclusions of law is whether the trial judge’s interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. In this case, the District Court held that, despite a delay of 44 months, dismissal of CSED’s income withholding action was not a proper remedy. We review this conclusion of law to determine whether the District Court properly interpreted Montana’s constitutional guarantees to due process.

DISCUSSION

Has Reid Connell’s constitutional right to due process been violated under the facts of this case?

We hold that Connell’s right to due process under Montana Constitution Article II, Section 17, has been violated and reverse the District Court’s decision to affirm the ALJ’s July 28, 1995 Order. Because this issue is dispositive, we will not address the second issue raised on appeal.

Connell argues that the District Court erred when it held that dismissal was not a proper remedy. Connell contends that he has a protected liberty interest in having a final decision rendered within the time frames established by the Montana Legislature. He asserts that when the CSED hearings office failed to render a decision after almost a four-year period, this lack of action constituted an unnecessary and unreasonable delay, and, thereby, violated his right to due process. Connell admits that he received the requisite notice and a fair hearing, yet, he asserts that he also has a procedural right to be free from unnecessary delay in the final adjudication of his child support obligations.

Connell points out that hearings officers are required to take official notice of federal and state law, pursuant to Rule 46.30.633(l)(a), and (b), ARM, and that specific time frames for completion of actions are set forth under Rule 46.30.643, ARM. Specifically, “[fincóme withholding actions must be completed within 45 days after service of notice under 45 CFR 303.100.” Rule 46.30.643(1), ARM. Furthermore, Connell asserts that hearings officers must enter a final decision and order within 20 days of the hearing pursuant to § 40-5-226(7), MCA (1989). Connell argues that CSED’s hearings office failed to meet each and every one of these time frames. Therefore, Connell asserts, CSED violated his right to due process and dismissal of this action is appropriate.

CSED responds that the timetable for informing the obligor of the hearing decision on a Notice of Intent to Withhold Income is 45 days from the date of service of the notice under § 40-5-414(6), MCA (1989), and that no statutory time limit is set for issuing a decision concerning the state tax offset notice under § 17-4-105, MCA (1989). CSED attributes the missed 45-day deadline to Connell’s requests for continuance of the hearing which resulted in the hearing being held one year after service of notice. CSED additionally attempts to avoid responsibility for its inaction by stating:

Once the hearing officer was no longer empowered by the CSED to render a decision, the CSED was unsure how to proceed in the. absence of the hearing officer. Eventually, after reorganization of the CSED Hearings Office, and the lapse of an additional thirty months, the new Administrative Law Judge took steps to have the matter finally determined....

Further, relying on authority from other jurisdictions, CSED argues that while Rule 46.30.643(1), ARM, and § 40-5-414(6), MCA (1989), respectively require that income withholding actions must be completed and the obligor notified of the hearing decision within 45 days after service of notice, these time frames are merely directory rather than mandatory. Therefore, CSED asserts that although violation of these time frames subjects CSED to possible federal audit penalties, it does not form a basis for dismissal of the action or entry of default against CSED.

We disagree. Whether the specific time frames established for income withholding actions are directory or mandatory is a question we find unnecessary to answer in this case and does not affect our conclusion that CSED’s failure to render a decision for 44 months violated Connell’s due process guarantees under the Montana Constitution. “Administrative agencies are not exempt from the constitutional restraints of due process requirements.” Montana Power Co. v. Public Service Comm. (1983), 206 Mont. 359, 368, 671 R2d 604, 609.

Under the protection of due process, people are granted the opportunity to be heard “at a meaningful time and in a meaningful manner.” Montana Power Co., 671 P.2d at 609 (citing Mathews v. Eldridge (1976), 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18, 32). Indeed, “due process mandates that an administrative hearing will constitute a fair trial, conducted in accordance with fundamental principles of fair play and applicable procedural standards establishedby law.” Precious Metals Assocs. v. Commodity Futures Trading Comm’n (1st Cir. 1980), 620 F.2d 900, 910 (citation omitted). The Montana Constitution broadly guarantees that “[n]o person shall be deprived of life, liberty, or property without due process of law.” Art. II, Sec. 17, Mont. Const. Moreover, Connell is guaranteed that “justice shall be administered without... delay.” Art II, Sec. 16, Mont. Const.

In addition to the constitutional guarantees for prompt disposition of administrative actions, Montana statutes and administrative rules set forth specific time frames for expedited administrative income withholding actions. CSED initiated an income withholding action against Connell pursuant to the provisions of Montana’s Child Support Enforcement Act, §§ 40-5-401, et seq., MCA (1989). Rule 46.30.643(1), ARM, requires that income withholding actions must be completed within 45 days after service of notice and § 40-5-414(6), MCA (1989), requires that the obligor be informed of the hearing decision within the same time frame. The purpose of the Child Support Enforcement Act is “to provide a more effective and efficient way to guarantee the support of dependent children ....” Section 40-5-402, MCA (1989). This stated purpose comports with the federal regulation calling for expedited administrative or judicial processes that increase the effectiveness and meet specified processing times concerning income withholding actions. 45 C.F.R. § 303.101 (1989).

CSED not only missed all legally imposed time frames for completion of this action, but it also blatantly violated all notions of procedural fairness by failing to act for a period of 44 months after the expiration of the deadline for submitting proposed findings of fact and conclusions of law. Moreover, CSED’s statement that it was “unsure how to proceed” once the original hearings officer’s contract expired is shocking, to say the least. Having missed every deadline imposed upon it by law and by its own hearings officer, CSED’s attempt to justify its failure to do anything because it was not sure what it should do borders on the absurd. Litigants appearing before our State agencies in proceedings where their property, benefits or rights are at stake deserve better treatment than being forced to twist slowly in the breeze because the agency not only fails to timely complete a proceeding it commenced, but, worse, is apparently not even sure how to go about doing so. Consequently, we conclude that CSED’s unreasonable delay in resolving this case, in light of the various time frames discussed above, violated Connell’s right to due process guaranteed by Montana Constitution Article II, Section 17. Montana’s constitutional guarantee of justice without delay set forth at Article II, Section 16 adds further support to our conclusion on the facts here.

Only once before have we dealt with a similarly long period of inaction on the part of a state agency. See Klundt v. State, ex rel., Bd. of Personnel Appeals (1986), 219 Mont. 347, 712 P.2d 776. While neither party in this action cited Klundt in their briefs, we believe that it is appropriate that we acknowledge the case, in any event. In Klundt, a worker alleged that, due to a 37-month delay, the Board of Personnel Appeals (Board) denied him a timely hearing and thereby violated his due process rights. We affirmed the District Court order granting the Board’s motion to dismiss. We stated that, in Montana, due process requires notice and an opportunity to be heard. Klundt, 712 P.2d at 779. Without any further analysis, we concluded:

In this case, the Board fulfilled the fundamental requirements of due process. Klundt received notice and was given an opportunity to be heard. The three-year delay is disturbing, but not fatal.

Klundt, 712 P.2d at 779.

The facts in Klundt potentially explained the Board’s delay in conducting a hearing by indicating that the Board put the matter on hold in response to a request from Klundt’s union allegedly instigated by Klundt himself. Additionally, Klundt did not argue that any specific time frames were violated, but only that this particular delay was too long. In this case, CSED only explains that the hearings office failed to render a decision within established time frames due to CSED’s uncertainty and resulting inaction.

It appears that Klundt was decided on its facts and does not establish precedent one way or the other as far as the instant case is concerned. Here, the income withholding action filed against Connell by CSED was not timely completed because of the lack of diligence and inaction of the responsible agency. CSED failed to act within the time frames established by law, by administrative rule, and by the hearings officer. Connell did nothing that would justify the unreasonable delay at issue here — a delay which we conclude is more than simply “disturbing.”

In sum, failure on the part of CSED’s hearings office to render a decision after a lapse of 44 months constitutes undue delay under Montana Constitution Article II, Section 16, and violates the due process guarantees under Montana Constitution Article II, Section 17. CSED’s violation of Connell’s due process rights compels dismissal. Therefore, based on the facts of this case, we hold that the District Court erred in affirming the ALJ’s July 28, 1995 Order denying Connell’s motion to dismiss and setting a rehearing date. Accordingly, we hereby remand for entry of an order dismissing with prejudice both CSED’s income withholding action against Connell and CSED’s proposed tax offset action against Connell’s 1990 state warrant.

Reversed and remanded.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, ERDMANN and HUNT concur.


author: JUSTICE HUNT JUSTICE GRAY, JUSTICE NELSON,

text:
    IN RE THE MARRIAGE OF: KIMBERLY ANN SYVERSON, Petitioner/Respondent, and MICHAEL SHERMAN SYVERSON, Respondent/Appellant.
    No. 94-191.
    Submitted on Briefs August 15, 1996.
    Decided January 3, 1997.
    54 St.Rep. 32.
    281 Mont. 1.
    931 P.2d 691.

      For Appellant: Timothy J. O’Hare, O’Hare Law Firm, Lewistown.
    For Respondent: Joan Meyer Nye, Nye & Meyer, Billings; Ann Hefenieder, Special Assistant Attorney General, Child Support Enforcement Division, Billings.
   JUSTICE HUNT

delivered the Opinion of the Court.

The marriage of Kimberly Ann Syverson (Kimberly) and Michael Sherman Syverson (Michael) was dissolved pursuant to a decree issued by the Tenth Judicial District Court, Fergus County. Subsequently, Michael moved the court for a modification of child support, and Kimberly moved the court for a modification of both child support and the parties’ child custody arrangement. Michael appeals the District Court’s disposition of the parties’ respective motions.

We affirm in part and reverse in part.

The following issues are presented for our review:

1. Did the District Court err in awarding Kimberly day care expenses incurred as an incident to her status as a student?

2. Did the District Court err in its defacto denial of Michael’s motion for modification of child support?

3. Did the District Court err in granting Kimberly’s motion for modification of child support?

4. Did the District Court err in failing to award Michael the exclusive right to claim the children as his dependents for federal and state income tax purposes?

5. Did the District Court err in its excessive modification of the custodial plan?

FACTS

Kimberly and Michael were married in Minnesota in 1983. The couple have three children: Rebecca, born March 30, 1984; Kaydee, born May 11, 1986; and Amy, bom March 19, 1988. The Syverson family made Lewistown, Montana its home.

In 1992, Kimberly and Michael sought a dissolution of their marriage, and on July 24, 1992, the parties executed a “Property Settlement and Custody Agreement” (Agreement). In relevant part, the Agreement provided that the parties would have joint custody of the children, and that they would divide as equally as possible the actual physical custody of the children; the Agreement provided that Michael would have physical custody of the children for a total of 160 days out of the year.

The Agreement also provided that Michael would be responsible for monthly child support payments of $475, but that, in light of Michael’s anticipated job change, the parties’ child support obligations could be reviewed upon the request of either party. In addition, the Agreement provided that Michael would be responsible for a share of the children’s day care costs. The Agreement defined “daycare” as “those child care costs incurred for the control and supervision of the child during the parent’s hours of employment.”

Finally, the Agreement provided that each party would claim one child as a dependent for tax purposes, and that the parties would alternate annually claiming the third child as a dependent. The court adopted and incorporated the Agreement in its decree of dissolution dated July 28, 1992.

At the time the marriage was dissolved, Michael was employed in the construction business, earning about $30,000 per year. Kimberly was a secretary for the local school district and earned almost $ 18,000 per year. Afew months after the marriage was dissolved, in February 1993, Michael, as was anticipated, changed employment. His income from his new employment with the Montana State Highway Department was $22,692 per year, which he supplemented by undertaking various construction jobs. On May 3, 1993, Michael filed “Amended Motions” for modification of child support, requesting that his child support payment obligation be lowered in accordance with his decreased salary.

On August 10,1993, Kimberly filed a counter-motion for modification of visitation and child support, based on her intention of moving to Billings, Montana to attend school. Kimberly quit her secretarial position and on August 15, 1993, moved with the three children to Billings where she enrolled at Eastern Montana College as a full-time student. To manage her daily living expenses, and to pay for her tuition, Kimberly obtained student loans, federal tuition grants, subsidized housing, and other public assistance.

On November 18, 1993, the court heard the parties’ pending motions. Counsel for Michael and Kimberly were present at the hearing, as was Ann Hefenieder, on behalf of the Department of Social and Rehabilitation Services, Child Support Enforcement Division (Ms. Hefenieder became involved in the proceedings once Kimberly began receiving public assistance monies.) On November 29, 1993, Ms. Hefenieder filed a proposed child support calculation, which recommended that Michael’s child support obligation be calculated at $183.41 per month, per child. Ms. Hefenieder calculated her child support obligation figures in part by imputing no income to Kimberly and by allowing Michael “four exemptions:” himself and the three children as dependents.

On November 30, the court issued its partial findings of fact, conclusions of law and order, by which it set out a visitation schedule that provided Michael with 75 days of physical custody of the children, required Michael to continue paying his present share of child care costs while Kimberly was in school, and continued Michael’s child support obligation previously established by the decree of dissolution. On December 15, 1993, the court issued its supplemental findings of fact, conclusions and order, setting Michael’s child support obligation at $550.25 per month, based in part on Ms. Hefenieder’s recommendation.

On February 8,1994, Michael filed a document entitled “Motions,” by which he requested the court to vacate and reconsider its partial findings of fact, conclusions of law and order, and its supplemental findings of fact, conclusions and order. In that document, Michael requested that he be allowed to claim all three children as dependents, and also offered essentially the same arguments on the same issues as we have been asked to review here. On March 25,1994, the District Court denied Michael’s “Motions.”

On April 11,1994, Michael filed with this Court his notice of appeal of the District Court’s partial findings of fact, conclusions of law and order, the court’s supplemental findings of fact, conclusions and order, and the court’s March 25,1994 order. On October 14,1994, we ordered that the case be remanded to the District Court for a hearing to determine if a case that this Court decided after the District Court’s disposition of the matter, In re the Marriage of Johnson (1994), 266 Mont. 158, 879 P.2d 689, had any bearing on the court’s modification of custody. The District Court held a hearing in accordance with our order, and on December 15,1995, issued its “Order and Memorandum on Remand Regarding Johnson Decision”, concluding that Johnson did not apply to the instant case.

Presently, the parties and Ms. Hefenieder have stipulated to the five issues presented by Michael for our review. The parties have farther stipulated that Ms. Hefenieder, on behalf of the Montana State Department of Social and Rehabilitation Services, Child Support Enforcement Division, shall address and brief issues one, two, and three, and that Kimberly shall address and brief issues four and five. The question of the applicability of Johnson is relevant to Issue Five and will be discussed in that portion of this Opinion.

ISSUE ONE

Did the District Court err in awarding Kimberly daycare expenses incurred as an incident to her status as a student?

In both its partial and supplemental findings and conclusions, the court ordered that Michael pay 65% of the daycare costs Kimberly incurs while she is in school. This is the same percentage of daycare that Michael initially agreed to pay pursuant to the Agreement. However, Michael argues that the court was in error because the Agreement provided that he only pay “those child care costs incurred for the control and supervision of the child during the custodial parent’s hours of employment.” Michael contends that because Kimberly, the custodial parent, is an unemployed student, the care of the children while she maintains that status is not “daycare” as defined in the Agreement. Therefore, Michael argues, he is relieved of his daycare obligation so long as Kimberly is unemployed. Michael asserts that the court committed reversible error in requiring him to pay for daycare in spite of this provision in the Agreement. We disagree.

The responsibility for child care costs is an important part of a parent’s child support obligation. See In re the Marriage of Noel (1994), 265 Mont. 249, 875 P.2d 358. Our standard of review of a ruling establishing or modifying a child support obligation is whether the district court abused its discretion. Noel, 875 P.2d at 359 (reviewing a ruling establishing a child support obligation); In re the Marriage of Kovash (1995), 270 Mont. 517, 521, 893 P.2d 860, 862-63 (reviewing an “overall decision” modifying a child support obligation). We must determine whether the court abused its discretion in requiring Michael to continue to pay a portion of the child care costs incurred while Kimberly is unemployed and in school.

Michael first argues that the Agreement signed by the parties only creates an obligation for child care costs incurred while the custodial parent is employed. However, it is well established in Montana that where the interests of minor children are concerned, a district court is not bound by an agreement reached by the parties pursuant to a dissolution proceeding. Section 40-4-201(2), MCA; see also In re the Marriage of Carlson (1984), 214 Mont. 209, 217, 693 P.2d 496, 500. That in this context the District Court’s ruling was in any way inconsistent with the Agreement does not alone require us to find the court in error.

However, Michael also argues that the definition of “daycare” in the Agreement conforms to § 46.30.1525(l)(a), ARM (Child Support Guidelines), which allows child care costs to be considered in calculating a child support obligation when a custodial parent “must incur child care expenses for [the] child as a prerequisite to employment.” Michael contends that the language of this rule prohibits the court from ordering him to pay a portion of the child care costs while Kimberly is an unemployed student. Michael’s contention, strictly interpreting the language of the rule and the purpose of the Child Support Guidelines, misses the mark.

We have held that “a district court must apply its discretion [in establishing a child support obligation] in a realistic manner, taking into account the actual situation of the parties.” Noel, 875 P.2d at 359 (citation omitted). Our review reveals that the court’s ruling here addressed the reality of Michael’s and Kimberly’s respective situations. Michael is employed and earning income while Kimberly is attending school, attempting to obtain a degree. Kimberly claims that her school attendance is sparked by a desire to eventually improve her financial position. We recognize a parent’s right to attempt to improve her financial position, even if doing so results in a temporary decrease in present income. See In re the Marriage of Rome (1981), 190 Mont. 495, 621 P.2d 1090. We note that the Child Support Guidelines are in accord in this respect, preventing, when calculating child support obligations, the imputation of income to a parent “engaged in a plan of economic self-improvement, including but not limited to education and retraining, which will result, in a reasonable time, in an economic benefit to the children for whom the support obligation is being determined.” Section 46.30.1513(2)(d)(iii), ARM.

Kimberly’s studies require her to incur child care expenses. The court heard testimony concerning the amount of these expenses. The record clearly establishes the parties’ respective financial situations. The District Court specifically found that

though under the Uniform Child Support Guidelines, [Michael] would be required to pay 100% of the daycare costs in addition to his child support, such an order would be inequitable. Based upon the evidence and the facts and circumstances of this particular case, the Court orders that daycare costs be apportioned 65% to [Michael] and 35% to [Kimberly].

The District Court’s apportionment of the parties’ respective responsibilities for child care costs demonstrates the “employment of conscientious judgment.” See In re the Marriage of Goodman (1986), 222 Mont. 446, 448, 723 P.2d 219, 220 (defining test of abuse of discretion). The District Court did not abuse its discretion in ordering Michael to continue paying a portion of the child care costs incurred while Kimberly is unemployed and attends school.

ISSUE TWO

Did the District Court err in its defacto denial of Michael’s motion for modification of child support?

Michael argues that the Agreement plainly provides that his change in employment triggers a modification of his child support obligation, upon his request. Michael contends that because the court did not modify his child support obligation as he recommended in his “Motions” document, and as mandated by the Agreement, the court abused its discretion. We disagree.

The provision in the Agreement to which Michael refers states, in pertinent part:

It is anticipated that [Michael] shall be changing employment in the foreseeable future; and that, upon such event and effective thereon, the child support obligations of the parties hereto shall be reviewed upon request of either party hereto.

The language here plainly requires only a review of the parties’ child support obligations, not a particular modification of those obligations. In any event, we reiterate this Court’s position that, with respect to matters concerning minor children, district courts are not bound by agreements reached by the parties. Carlson, 693 P.2d at 500.

At the hearing on Michael’s and Kimberly’s respective motions, the court heard testimony concerning Michael’s employment change and decreased salary, as well as testimony concerning Kimberly’s school attendance and receipt of public assistance monies. Prior to issuing its supplemental findings and conclusions, the court received Ms. Hefenieder’s recommendations regarding child support. The court reviewed all of this information and then ruled that Michael’s monthly child support obligation be increased by about $100. That Michael may have initially assumed, reasonably or not, that the court would eventually modify his child support obligation so that he would be responsible for a lesser monthly amount is not a ground for reversal here; in ruling as it did, the court considered all of the information before it, including Michael’s change of circumstances, as well as Kimberly’s change of circumstances and Ms. Hefenieder’s recommendations. We conclude that the District Court did not abuse its discretion.

ISSUE THREE

Did the District Court err in granting Kimberly’s motion for modification of child support?

As to this issue, Michael presents two basic arguments. First, Michael argues that the court had no jurisdiction over Kimberly’s motion for modification of child support. This argument is premised on Michael’s contention that the District Court should have granted his motion for modification of child support. We have already affirmed the court’s disposition of Michael’s motion. We need not further address this first argument raised by Michael.

Alternatively, Michael argues that even if the court properly denied his motion and granted Kimberly’s motion, it nevertheless erred in its income calculations. Specifically, Michael contends that the cotut erroneously imputed no income to Kimberly, and erroneously attributed to him income from his construction “side jobs.” In addition, Michael contends that these errors constituted variances from the Child Support Guidelines, and that the court further erred in failing to state its reasons for the variances.

At the outset, we must state our disagreement with Michael’s argument that the court’s allegedly erroneous income calculations were variances from the Child Support Guidelines, and that the court therefore had a duty to state its reasons for the variances. Our review of the record establishes that the income calculations here were made pursuant to the guidelines; the particular decisions the court made in its calculations, to include some income but exclude other income and to impute income to one party but not another, were made within the confines of the guidelines.

Michael notes that Kimberly, as a student, receives various types of financial aid. While Michael concedes that most of this aid is in the form of loans, must be repaid, and thus cannot be considered income, he does argue that one financial aid payment, a Pell Grant, need not be repaid by Kimberly and thus must be considered income. Each semester, $958 of the $975 Pell Grant Kimberly received was used to pay tuition at Eastern Montana College; $17 remained each semester for Kimberly’s personal use. Section 46.30.1513(2)(e), ARM, provides:

Although income is not imputed under subsection (2)(d), actual income, including grants, scholarships, third party contributions or other money intended to subsidize the parent’s living expenses and which are not required to be repaid at some later date, should be included in gross income. (Emphasis added.)

According to this rule, the $17 that remained each semester for Kimberly’s personal use should have been included as income. Ms. Hefenieder did not include this amount as income in her child support calculations, but this mistake, and the court’s subsequent adoption of it, does not amount to reversible error.

Michael also argues that Kimberly does not fall within the “protection” of § 46.30.1513(2)(d)(iii), ARM, which states that:

(d) Income should not be imputed if any of the following conditions exist:
(iii) the parent is engaged in a plan of economic self-improvement, including but not limited to education and retraining which will result, within a reasonable time, in an economic benefit to the children for whom the support obligation is being determined.

Michael contends that this rule cannot apply to Kimberly because she has no “planned course of study,” failed to “present evidence as to the job opportunities that she would gain through this education,” and because she failed to “present evidence as to what the entry level income would be for those job opportunities.” Michael claims that Kimberly has “completely failed to meet her burden of proof.” We disagree.

Kimberly sought to continue her education, education being one of a number of possible examples of a “plan of self-improvement.” Section 46.30.1513(2)(d)(iii), ARM. We do notread this rule as requiring a parent to present a blueprint of her intended career and earnings in order to “meet her burden of proof.” Moreover, while the district courts must adhere to the applicable rules within the Child Support Guidelines, § 40-4-204(3)(a), MCA, the degree of discretion afforded district courts in family law matters is well established in Montana. See In re the Marriage of Dishon (1996), [277 Mont. 501], 922 P.2d 1186 (court’s exercise of discretion in light of its duty to adhere to the Child Support Guidelines). The record shows that Kimberly, a freshman at the time of the proceedings, was considering a career in either education or social work. The District Court found that Kimberly entered school “not to avoid payment of child support, but rather to better herself economically which will benefit both her and the children in the future.” The court also found that “[i]t would not be equitable to impute income for the benefit of the children when the income does not exist.” We conclude that the court did not abuse its discretion when it determined that Rule 46.30.1513(2)(d)(iii), ARM, applied to Kimberly, and in accordance with that rule did not impute income to her.

Michael also argues that the court erred in attributing to him income from his periodic construction side jobs. In addition to his salary from his employment with the Department of Highways, Michael received income from various side jobs he undertook “out of financial necessity.” Michael contends, citing § 46.30.1515(3)(a), ARM, that because these side jobs “were not accomplished over ‘a period sufficient to accurately reflect the parent’s earning ability,’ ” the income received from these jobs should not have been considered in the child support calculations. Michael’s contention is based on a misinterpretation of the rule; rather than arguing whether the court should or should not have averaged or projected his side job income, Michael simply argues that his side job income should not have been included as gross income. The cited rule states:

(3) To the extent possible, gross income and expenses should be annualized to avoid the possibility of skewed application of the guidelines based on temporary or seasonal conditions. Income and expenses may be annualized using one of the two following methods:
(a) seasonal employment or fluctuating income should be averaged over a period sufficient to accurately reflect the parent’s earning ability. However, income should not be averaged if a reduction is due to circumstances beyond a parent’s control such as a plant closure; or
(b) current income or expenses may be projected when a recent increase or decrease in income is expected to continue for the foreseeable future. For example, when a student graduates and obtains permanent employment, income should be projected at the new wage.

Section 46.30.1515(3), ARM. We briefly discussed this rule in In re Pedersen (1993), 261 Mont. 284, 862 P.2d 411, where we upheld a district court’s determination of gross income, a determination reached by averaging the party’s income over the prior two years. We stated that “§ 46.30.1515(3), ARM, expressly allows fluctuating income to be annualized by averaging it over a period sufficient to accurately reflect earning ability.” Pedersen, 862 P.2d at 413.

The court here did not average Michael’s income, because it was not prompted to do so. The financial information provided here established that Michael’s Department of Highways salary was about $23,000, and that he received approximately $2,500 more from his side jobs. The calculations which the court adopted did not average Michael’s side job income; rather, the calculations merely included as gross income the actual amounts that Michael stated that he had received. See § 46.30.1508, ARM. The court properly calculated the child support obligations based on the information before it. Platt v. Platt (1994), 267 Mont. 38,41, 881 P.2d 634, 636. Michael’s argument misses the mark. The court did not abuse its discretion.

ISSUE FOUR

Did the District Court err in failing to award Michael the exclusive right to claim the children as his dependents for federal and state income tax purposes?

The Agreement provides that Michael and Kimberly each claim one child as a dependent for tax purposes, and that the parties alternate on an annual basis claiming the third child as a dependent. However, Ms. Hefenieder, in calculating her child support recommendations in light of the parties’ changed circumstances, assumed that Michael would be allowed to claim all three children as dependents, at least while Kimberly retained her unemployed student status. The court fully adopted Ms. Hefenieder’s recommendations in ruling on the motions for modification before it. Later, Michael filed a motion in which he specifically requested that he be allowed to claim all three children as dependents. This motion, and all other post-hearing motions Michael filed, were denied.

Michael argues that the court abused its discretion because although on the one hand it accepted Ms. Hefenieder’s child support calculations, which were based in part on imputing no income to Kimberly and allowing Michael to claim the children as dependents, the court on the other hand later refused Michael’s request to claim the children as dependents. In her brief submitted to us, Kimberly stipulates that Michael be allowed to claim the children as dependents while she attends school. As the District Court’s denial of Michael’s request to claim the children as dependents was cursory and without explanation, and as Kimberly and Ms. Hefenieder in fact agree with Michael as to this issue, we must reverse and remand this issue to the District Court so that the court may revise its order to allow Michael to claim the children as dependents while Kimberly attends school.

ISSUE FIVE

Did the District Court err in its excessive modification of the custodial plan?

Our resolution of this issue requires us to conduct two inquiries. First, we must review the District Court’s determination, pursuant to our order of October 14, 1994, that the Johnson decision does not apply to or affect the instant case. Second, based on our conclusion as to the first inquiry, we must review the court’s modification of the custodial plan, where the court reduced from 160 to 75 the number of days per year that Michael would have physical custody of the children.

The court’s conclusion that Johnson is inapplicable to and does not affect this case is a conclusion of law. The standard of review of a district court’s conclusion of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 898 P.2d 680.

By order dated October 14, 1994, we remanded this case to the District Court for a determination of whether the Johnson decision applies to this case. In Johnson, the custodial arrangement as established by the dissolution decree provided for joint custody, but awarded Jerome physical custody of the children and provided Barbara with the right of reasonable visitation. Following the dissolution of the marriage, Barbara moved from the family’s hometown of Roy to Billings in order to attend college. Dining this time, the children resided, on a yearly basis, with Jerome for nine months and with Barbara for the remaining three summer months. Barbara did not complete college, but moved to Lewistown where she became a manager of a fast food restaurant. Barbara then moved the court to modify the custody arrangement, awarding her physical custody of the children and granting Jerome visitation rights. The court granted Barbara’s motion. The issue in Johnson pertinent to our discussion here was as follows:

When a party to a former dissolution proceeding moves to amend the decree in a way that substantially changes the residential living arrangements of the former couple’s children without seeking a change in the legal designation of “joint custody,” is the District Court’s decision governed by the “best interest” standard found at § 40-4-212, MCA, or by the “serious endangerment” standard found at § 40-4-219(l)(c), MCA?

Johnson, 879 P.2d at 691. After reviewing some of our prior decisions concerning custody modification, decisions which we characterized as “not necessarily consistent with the statutory scheme for modification, nor with each other,” Johnson, 879 P.2d at 692, we stated:

Considering our statutory scheme for modification of custody arrangements, and the rationale for requiring a substantial showing before altering the living arrangements to which a child has become accustomed, and out of concern that the applicable standard for granting a motion to modify custody arrangements is not clear from our prior decisions, we adopt the following standard:
Motions or petitions to modify a sole custody provision or terminate a joint custody provision must satisfy the jurisdictional prerequisites set forth in § 40-4-219, MCA. Likewise, a motion or petition to modify child custody provisions in a dissolution decree which have the effect of substantially changing the primary residence of the parties’ children, even though the formal designation of “joint custody” is retained, are to be construed as motions or petitions to terminate joint custody and must satisfy the jurisdictional requirements set forth in § 40-4-219, MCA. Any effort to modify the physical custody arrangements in a decree which provided for joint custody, which does not seek a substantial change in the children’s primary residence, may be considered by the district court according to the best interest standard set forth in § 40-4-212, MCA.
We conclude that this approach is most consistent with the plain terms of Montana’s Marriage and Divorce Act and is most likely to provide for the continuity and stability of children’s living arrangements that the Legislature obviously determined to be important when it adopted that Act.

Johnson, 879 P.2d at 694.

On remand, the District Court here concluded that Johnson did not apply to or affect the instant case. The court reasoned that Johnson could not apply where, as here, circumstances demanded that the existing custodial arrangement be reviewed and ultimately modified. The court noted that the existing custody arrangement provided for the children to reside with Kimberly for three weeks per month, and to reside with Michael for the remaining week in the month. At the time of the divorce decree, both Kimberly and Michael lived in Lewistown. Later, Kimberly moved to Billings to go to school; maintaining the same custody arrangement during the school year would require the children to attend a school in Billings for three weeks out of a month, and to attend a school in Lewistown for one week out of a month. The court impliedly concluded that common sense, if nothing else, required that modification under circumstances such as these be reviewed under the “best interest of the child” criteria, § 40-4-212, MCA; introducing § -219’s jurisdictional hurdle could lead to some unjust, if not absurd results. The court stated:

Johnson clearly was referring to the transfer of physical custody from the primary custodian to the secondary custodian. Johnson is not applicable to a case where, due to change in circumstances of the joint custodians no longer living in the same community, the physical custody time allocation must, of necessity, be modified. In Johnson there was no such legal necessity.

We appreciate the District Court’s concern that the application of Johnson to this case, to the extent that Johnson would require § 40-4-219, MCA, to govern the modification question, could lead to an unjust result; if none of the jurisdictional prerequisites of § -219 can first be met, the court cannot reach the “best interest” test and would be unable to modify a custody and visitation arrangement that clearly needs to be modified. Moreover, this is clearly a situation in which the best interests of the children should govern the modification. Finally, it is not modification that the parties dispute; in fact, both parties concede the need to modify the existing arrangement. Rather, it is the particular terms of the modification that the parties dispute.

However, Johnson does apply to this case, as Johnson would apply to any custody modification case; the Johnson decision clarifies this Court’s variable approach to child custody cases, where the proper approach depends on the circumstances of the particular case. Johnson was intended to and does have blanket applicability, as our Opinion in that case contains complete coverage and analysis of the custody modification statutes. Johnson dictates that under circumstances like those found in this case, where modification would have the effect of substantially changing the children’s primary residence, the court must first meet the jurisdictional requirements of § -219. However, Johnson is not the cause of the District Court’s quandary. Rather, it is an inadequacy in § -219 which has created confusion and frustration.

Under § -219, a court may proceed to modify a custody decree according to the best interests of the child if it finds that “a change has occurred in the circumstances of the child or the child’s custodian,” and if it further finds that the custodial parent has moved or intends to move with the child to another state. Section 40-4-219(l)(f), MCA (emphasis added). Section 219 does not expressly allow modification if the custodial parent and the child move within the state of Montana, nor does the statute expressly allow modification if the custodial parent and child move to another country. According to § -219, if the custodial parent and the child move from Wibaux, MT, to Beach, ND, a distance of less than 50 miles, the court may modify the custody arrangement. If, however, the custodial parent and the child move from Wibaux, MT, to Libby, MT, a distance of nearly 500 miles, the court may not modify the custody arrangement. In addition, if the custodial parent and the child move from Wibaux, MT, to Lethbridge, Alberta, Canada, the court may not modify the custody arrangement, as § -219 does not provide for such a contingency. Clearly, § -219 is inadequate. Under certain circumstances, a move within Montana’s borders may well be more disruptive to the effectiveness of a custody decree than a move outside of Montana’s borders. As well, a move outside of Montana’s borders to another country would likely be more disruptive than a move outside of Montana’s borders to another state.

It is inconceivable to us that the application of § -219 was ever intended to cause such absurd results as illustrated both in our hypothetical and in the case before us. While courts should in general interpret and apply statutes as they are written, they also have a duty to look beyond the language of a statute if literal application would lead to an absurd result. In re Unit Portions of Delaware, Inc. (Bkrtcy.E.D.N.Y. 1985), 53 B.R. 83, 84. “Courts will not foolishly bind themselves to the plain language of a statute where doing so would ‘compel an odd result.’ ” Hughey v. JMS Development Corp. (11th Cir. 1996), 78 F.3d 1523, 1529 (citing Green v. Bock Laundry Mach. Co. (1989), 490 U.S. 504, 509, 109 S.Ct. 1981, 1984, 104 L.Ed.2d 557). This Court has previously construed, interpreted, and applied the law in order to avoid absurd results. See State v. Schnittgen (Mont. 1996), 922 P.2d 500, 510, 53 St.Rep. 710, 717 (double jeopardy case wherein we stated that “applying the [U.S. v.] Halper [(1989) 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487] test to the instant case would work an obviously absurd result not intended by the Court”); Stroop v. Day (1995), 271 Mont. 314, 318-19, 896 P.2d 439, 441-42 (we refusing to literally interpret the word “provocation” as found in the “Dog Bite” statute, § 27-1-715, MCA, because to do so would “yield unjust and absurd results” (citing Robinson v. Meadows (Ill. Ct. App. 1990), 203 Ill.App.3d 706, 148 Ill.Dec. 805, 561 N.E.2d 111)); Hafner v. Conoco, Inc. (1994), 268 Mont. 396, 403, 886 P.2d 947, 951 (employment discrimination case in which our determination that the district court erred in finding Hafner qualified for his position with Conoco was “guid[ed]” by the court’s reasoning in Chandler v. City of Dallas (5th Cir. 1993), 2 F.3d 1385, 1393, cert. denied 511 U.S. 1011, 114 S.Ct. 1386, 128 L.Ed.2d 61 (1994), that a literal reading of “otherwise qualified” was not favored “because of the absurd results that would be produced”); Montana Dept. of Revenue v. Kaiser Cement Corp. (1990), 245 Mont. 502, 506, 803 P.2d 1061, 1063 (tax case in which we agreed with the Department of Revenue’s interpretation of the applicable tax statutes, stating “that to hold otherwise would lead to absurd results”); State v. Trimmer (1985), 214 Mont. 427, 432-33, 694 P.2d 490, 493 (“It has long been a rule of statutory construction that a literary application of a statute which would lead to absurd results should be avoided whenever any reasonable explanation can be given consistent with the legislative purpose of the statute”). Therefore, to avoid an absurd result in this case, and to prevent absurd results in other, similar cases, we establish the following rule:

Our decision in Johnson remains fully applicable in custody modification cases; if a request for modification of a joint custody decree would have the effect of substantially changing the primary residence of the parties’ children, the court, before engaging in modification, must first find that the requirements of § -219 have been met. If the court finds that (1) “a change has occurred in the circumstances of the child or the child’s custodian,” § 40-4-219(1), MCA, and (2) further finds that the custodial parent and the child or children have moved or are going to move from one location to a different location (whether inside or outside of Montana’s boundaries), and that this move will hinder the effectiveness of the existing custody arrangement, then (3) § -219’s jurisdictional requirements shall be deemed to have been met, and the court may proceed to modify the custody arrangement according to the “best interest” criteria set out in § 40-4-212, MCA.

Applying the foregoing analysis to this case, we conclude that Johnson dictates that the requirements of § -219 must be met; a modification that reflects both Kimberly’s move with the children from Lewistown to Billings and an 85-day decrease in Michael’s custody and visitation of the children certainly amounts to a “substantial change.” We further conclude that § -219’s requirements have been met because (1) there has been a change of circumstances which affects the parties and their children, and (2) Kimberly’s move with the children to Billings from Lewistown will hinder the effectiveness of the existing custody arrangement. We must now determine whether the District Court erred in its modification of the custodial arrangement, a modification which Michael characterizes as excessive because his custody of the children was reduced from 160 to 75 days annually. We consider Michael’s characterization within the context of § 40-4-224(2), MCA, which provides, in pertinent part:

The allotment of time between the parents must be as equal as possible; however
(a) each case shall be determined according to its own practicalities, with the best interest of the child as the primary consideration; and
(b) when allotting time between the parents, the court shall consider the effect of the time allotment on the stability and continuity of the child’s education.

The court employed the “best interest” test, and made the following findings with respect to the custody modification:

4. In August, 1993, [Kimberly] moved with the children to Billings to further her education. [Kimberly] is now a full time student at Eastern Montana College.
5. Since moving to Billings, [Michael] has had visitation of the children on the second and fourth weekends of each month. This has worked relatively well except for problems exchanging the children between the parents.
6.....
[Michael] shall continue to have visitation on the second and fourth weekends of each month.
8. In addition to weekend visitations, [Michael] and [Kimberly] shall alternate the major holidays as set forth in the Property Settlement Agreement, and [Michael] shall have visitation of the children for the 1993 Thanksgiving break, and [Kimberly] shall have visitation of the children for the first half of the Christmas break, [Michael] to have visitation the second half. Thereafter, holiday vacations shall be alternated between the parties with the travel arrangements as set forth above.
10. Summer visitation by [Michael] shall be during the second week of each month beginning in June, as well as the last full weekend of each month during the summer months of June, July, and August. The Court finds the parties’children are relatively young and all girls, and it is in the best interests of the children that the above visitation schedule be implemented. (Emphasis added.)

Michael argues in his opening brief that the court’s findings with respect to the “best interest” factors were insufficient. Michael contends that the court’s “drastic modification” was premised on only one “best interest” finding, unsupported by evidence, that “the parties’ children are relatively young and all girls, and it is in the best interests of the children that the above visitation schedule be implemented.”

We review a district court’s findings relating to custody or visitation modification to determine whether those findings are clearly erroneous. In re the Marriage of Elser (1995), 271 Mont. 265, 270, 895 P.2d 619, 622 (citation omitted), overruled on other grounds by Porter v. Galarneau, 275 Mont. 174, 185, 911 P.2d 1143, 1150 n.2. “Findings are clearly erroneous if they are not supported by substantial evidence, the court misapprehends the effect of the evidence, or this Court’s review of the record convinces it that a mistake has been made.” Elser, 895 P.2d at 622 (citation omitted). This Court will reverse a court’s decision to modify custody or visitation “only where an abuse of discretion is clearly demonstrated.” Elser, 895 P.2d at 622 (citation omitted).

As to Michael’s argument that the court erroneously made only one express finding that its modified visitation schedule was in the children’s best interests, we have stated that

[a] 11 the [“best interest of the child”] statute requires is that the court consider the factors listed. It is not required to make specific findings concerning each element, though it must express “the essential and determining facts upon which its conclusions rest.”

Contrary to Michael’s contention, the court’s finding that its modification of the custody arrangement was in the children’s best interests was supported by evidence in the record. The court heard testimony concerning, among other things: the parents’ wishes regarding custody and visitation; the interaction between the parents and the girls; and the children’s adjustment in each home. In addition, the paramount concern for both parties at the outset of these proceedings was that, after Kimberly’s move to Billings, the need to maintain the stability of the children’s education rendered the existing custody and visitation arrangement impractical. Michael does not claim that the court misapprehended the effect of the evidence, and as our review of the record does not reveal any mistake made by the District Court, we must conclude that the court did not abuse its discretion in its modification of the parties’ custody arrangement.

Affirmed in part, reversed in part, and remanded to the District Court for further proceedings consistent with this Opinion.

CHIEF JUSTICE TURNAGE, JUSTICES ERDMANN, TRIEWEILER and LEAPHART concur.

JUSTICE GRAY,

dissenting.

I respectfully dissent from the Court’s opinion on issue five.

In Johnson, we focused on Montana’s public policy, reflected in various legislative enactments, to promote continuity and stability in children’s living arrangements. We determined that the legislature intended § 40-4-219, MCA, to promote that public policy by requiring a substantial showing before significantly altering the living arrangements to which a child has been accustomed. We concluded, on that basis, that § 40-4-219, MCA, is applicable to all situations which have the effect of substantially changing such living arrangements and, consequently, that the statutory jurisdictional requirements must be met before a district court may make such a change. Johnson, 879 P.2d at 694.

As a result of Johnson, this Court has two — and only two — alternatives in resolving issue five in the present case. The first is to apply both Johnson and § 40-4-219, MCA, pursuant to their terms. Choosing that alternative would require this Court to reverse the District Court because the plainly stated jurisdictional requirements of § 40-4-219, MCA, are not met here — a fact which the Court concedes. The second available alternative is to create an exception to Johnson’s applicability for circumstances such as those presented here; this alternative would enable us to properly affirm the District Court.

Faced with this difficult choice, the Court staunchly refuses to do either. Instead, it determines that § 40-4-219, MCA, is “inadequate” and then proceeds to rewrite it. The Court does so by deleting the language duly enacted by the Montana legislature regarding a move by the custodial parent and the children “to another state” and restating the jurisdictional requirement as a move to “a different location” which, in the view of a district court, “will hinder the effectiveness of the existing custody arrangement.”

The Court’s action totally violates our most basic statutory obligation not to omit from a statute what is contained therein. See § 1-2-101, MCA. More importantly, the Court’s action violates our most basic constitutional obligation — set forth in Article III, Section 1, of the 1972 Montana Constitution — to refrain from exercising power properly belonging to the legislative branch of government.

Moreover, the present case does not present an issue regarding the proper interpretation of § 40-4-219, MCA, even assuming any judicial interpretation of the plainly stated alternative jurisdictional requirements contained in subsections (l)(a) through (l)(f) were appropriate. We remanded this case to the District Court to determine whether Johnson applies. The District Court determined that Johnson does not apply and this Court properly concludes that that determination was erroneous. As set forth above, that conclusion mandates either a reversal of the District Court or the creation by this Court of an exception to Johnson. Absolutely no basis exists for this Court to judicially rewrite a statute because it does not like the result reached in this case by applying its own judicial decision.

I agree that applying Johnson here creates a difficult situation. I disagree entirely with the Court’s means of addressing the difficulty.

Finally, I submit that the interests of Montana’s children in the stability and continuity of their living arrangements cannot be well served by this Court purporting to make up the statutory law of Montana as it goes along. Indeed, the interests of all Montanans in having the three branches of government take actions appropriate to their constitutional spheres, and in the consistency and stability of the laws of this state, are harmed by the Court’s action today.

As written, and as the Court agrees, Johnson applies here. Absent a reinterpretation oí Johnson to address circumstances such as those presented in this case, we must reverse the District Court.

JUSTICE NELSON joins in the foregoing dissent.

JUSTICE NELSON,

dissenting.

I agree that § 40-4-219, MCA, needs to be amended by the legislature to account for circumstances where a custodial parent moves within Montana or to another country. The examples set out in the majority opinion demonstrate very well the inadequacies and absurdities of § 40-4-219(l)(f), MCA, as presently written. Hopefully, the 1997 Legislature will find time, in what already appears to be a busy session, to address this problem.

However, I also agree with Justice Gray’s dissent. Having properly concluded that Johnson applies and that, therefore, the jurisdictional requirements of § 40-4-219, MCA, must be met, we are not at liberty to simply rewrite the clear and unambiguous provisions of subparagraph (l)(f) by adding language that is not there and by ignoring the language that is there. Interpreting or applying a statute or a case to avoid an absurd result where the language at issue is capable of more than one interpretation or application is one thing; unashamedly rewriting the statute because the application of its clear language produces what we perceive to be an unacceptable result is a dog of a different breed, however. In those cases, if the statute needs to be fixed — and this one does — then, constitutionally, it falls to the legislative branch to accomplish that.

That said, it strikes me that the problem in this case is our preoccupation in trying to affirm the District Court’s elemental conclusion that the children are better off with their mother in spite of Johnson and the requirements of § 40-4-219(l)(f), MCA. I suggest that, perhaps, we are forgetting what prompted our decision in Johnson in the first place.

Our decision in Johnson was grounded in the proposition that:

[A] child’s sense of continuity and stability are equally threatened when that child is uprooted from the only community in which that child has ever resided and relocated in a new household and new school, whether we refer to the change as one of legal custody or merely physical custody.

Johnson, 879 P.2d at 693. Here, Kimberly’s move to Billings was what caused the children to be uprooted from the community in which they lived and what caused them to be relocated to a new household and to a new school. Prior to her move, both parents pretty much had equal custody of and access to the children. It was Kimberly’s move that disrupted the existing custody arrangement that everyone agreed was in the children’s best interests, and it was that move that necessitated a different custody arrangement.

If Johnson is applicable, and we all agree that it is, then it seems to me that simply applying the letter and spirit of our decision produces the correct result. Since Kimberly has failed to meet the jurisdictional requirements of § 40-4-219, MCA, the children should not be required to move to Billings and to a new community, home and school with their mother, but rather they should be allowed to stay in Lewistown in their accustomed home, community and school with their father. In resolving the case in this fashion, the statute is upheld — as it is written; the rule in Johnson is not diluted; and the parent that precipitated this problem is forced to come to grips with the reality that she is going to have to make some hard decisions on where her priorities lie.

Obviously, this is not a perfect resolution for everyone; there rarely is in these sorts of cases. Nonetheless, given the statutory and case law that we are bound to enforce, I believe that it is the legally correct one.

I dissent from our decision on Issue Five and would reverse on that issue and remand for further proceedings on the other issues consistent with our decision on the custody issue.


text:
    MARCH 1996 CALENDAR
    STATE OF MONTANA, Plaintiff, vs. Carlos E. Ambriz, Defendant.
    NO. CDC 94-163A
    DECISION
    DATED this 19th day of March, 1996.
   On August 11,1995, it was ordered that the defendant, Carlos Ambriz, be sentenced to Montana State Penitentiary, Deer Lodge, Montana, for a period of forty (40) years for the crime of Deliberate Homicide, a Felony. Should parole be obtained, conditions will apply as stated in the August 11, 1995 judgment. The defendant is to be given credit for time already served in the Cascade County Detention Center, a total of 419 days. This Court recommends that the Department of Immigration and Naturalization should consider deportation upon release from prison.

On March 8,1996, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed and requested that his petition be dismissed.

It is hereby ordered that the petition is dismissed.

Done in open Court this 8th day of March, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal