text:
    In re the MATTER OF THE ADOPTION OF R.M., S.P.M. AND R.M., minor children.
    No. 89-253.
    Submitted on Briefs Dec. 1, 1989.
    Decided Jan. 18, 1990.
    785 P.2d 709.

      Kristine Davenport, Missoula, for appellant.
    Brad Arndorfer, Billings, for respondent.
   JUSTICE McDONOUGH

delivered to Opinion of the Court.

This appeal involves an adoption proceeding held in the Thirteenth Judicial District Court, Yellowstone County. Appellant, R.E.M, the natural father and respondent below, appeals the January 13, 1989 order and January 31, 1989 decree terminating his parental rights and granting the adoption of his children by their stepfather. The District Court ruled that the natural father’s consent was not required for the adoption because he had failed to provide support to his children pursuant to a court ordered decree of dissolution. We affirm.

The natural father raises the following issues on appeal:

1) Did the District Court err and abuse its discretion in finding that the natural father’s consent to the adoption of S.P.M. was not required because the natural father did not contribute to the support of all three children during a period of one year before the filing of the petition for adoption?

2) Did the District Court err and abuse its discretion in finding that it was in the children’s best interests to allow the stepfather to adopt them?

The natural father and the mother, C.R.S., were married in August of 1980. Their oldest child, R.R.M., is the mother’s child adopted by R.E.M. and is now ten years old. The other two children of the marriage are S.P.M., age eight, and R.C.M., age five. During their marriage, the natural father ran a business in Billings called Minute Man Pizza. Testimony indicated that profits from the business provided the family with approximately $1,000 per month.

The natural father testified that approximately August 9, 1985, his wife sent all the children from Billings to her parents house in Missoula. The natural father went to Missoula, took his son S.P.M. back from his wife’s parents, and returned to Billings with him. On August 19, 1985, the natural father filed a Petition for Dissolution of Marriage in the District Court of the Thirteenth Judicial District, Billings, Montana. The petition requested that the natural father receive custody of all the children. While the determination of custody in the dissolution was still pending, S.P.M. resided with him in Billings, Montana and the other two children resided with their mother, also in Billings. During this time, Court Services Domestic relations department conducted a study and recommended on January 22, 1986 that the parties have joint custody of all the children with the wife as the primary residential custodian. The parties’ testimony conflicts as to whether the natural father knew the contents of this report in January of 1986.

That same month, with the dissolution proceeding still pending, the natural father left Billings with S.P.M. and moved to Kennewick, Washington. The natural father did not have any further contact with his attorney concerning the dissolution case, he testified that he did not think the dissolution would proceed in his absence and that he told his attorney to “let the matter slide.” The natural father also told his attorney that he was considering moving to Mazatlan, Mexico. He did not tell his attorney of his true whereabouts, nor did he tell or inform the mother as to his leaving or his whereabouts.

On March 13, 1986, the natural father filed a petition for dissolution in Lincoln County, Washington, in which he requested custody of the three children. The mother was served by publication and did not appear. A decree of dissolution was entered by default in Washington on July 16,1986, awarding custody of the children to the natural father..

On November 13, 1986, the Montana dissolution proceeding was heard in the natural father’s absence. The motion for continuance made by the natural father’s attorney at that time on the grounds that he was unable to contact his client was denied.

The trial court granted the mother’s request for custody of the three minor children and ordered the natural father to pay $100.00 per month, per child as child support. A copy of the decree of dissolution was served upon the natural father’s attorney. The natural father alleges that he did not receive a copy of the decree and notice of his support obligation because his attorney was unable to locate him.

Meanwhile, in Washington, the natural father opened up a business similar to the one he had operated in Billings. The evidence indicates that he and S.P.M. occasionally visited the natural father’s parents in the Missoula area, but no contact was made with the mother or other children. In November of 1987, the natural father was arrested in Washington and charged with custodial interference pursuant to § 45-5-304, MCA. The natural father was forced to close down his business in Washington in order to answer the charges in Montana. After the natural father’s arrest, S.P.M. was placed in the custody of the mother. The charges of custodial interference were dismissed because insufficient facts were alleged in the initial affidavit to support the filing of the information. The natural father testified that after his extradition to Montana was the first time he was aware of a decree of dissolution ordering him to pay child support.

On May 9,1988, R.H.S., the mother’s new husband, filed a petition for adoption of the three minor children. The petition alleged that the natural father’s consent to the adoption was not required because he had not contributed to the support of the minor children for a period of one year before the filing of the petition and that he was able to do so. See § 40-8-lll(l)(a)(v), MCA.

On January 13, 1989 the District Court entered its findings of fact and conclusions of law. The court terminated the natural father’s parental rights for failure to support based on § 40-8-lll(l)(a)(v), MCA, and also found that the adoption was in the best interests of the children and entered a decree granting the adoption on January 31, 1989. The natural father now appeals.

I.

The primary issue in this case involves the District Court’s application of the adoption statute, § 40-8-111, MCA. The statute generally requires the filing of written consents in an adoption proceeding. Section 40-8-111(1), MCA. However, consent for the adoption is not required from a father or mother:

“(v) if it is proven to the satisfaction of the court that the father or mother, if able, has not contributed to the support of the child during a period of 1 year before the filing of a petition for adoption

Section 40-8-lll(l)(a)(v), MCA. Thus, a parent’s rights may be terminated, and an adoption decreed without that parent’s consent upon a showing of non-support under § 40-8-lll(l)(a)(v), MCA.

Parental rights involve a fundamental liberty interest, and a judicial decree terminating such rights must be supported by clear and convincing evidence. Matter of the Adoption of C.R.D. (Mont. 1989), [240 Mont. 106,] 782 P.2d 1280, 1282, 46 St.Rep. 1979, 1982; Matter of R.B. (1985), 217 Mont. 99, 103-104, 703 P.2d 846, 848, citing Santosky v. Kramer (1982), 455 U.S. 745, 753-754, 102 S.Ct. 1388, 1394-1395, 71 L.Ed.2d 599, 606. Persons faced with loss of their parental rights have a critical need for procedural protections, therefore when parental rights are judicially terminated the parents must be provided with fundamentally fair procedures. Santosky, 455 U.S. at 753-754, 102 S.Ct. at 1394-1395.

The natural father maintains, and the District Court found, that the natural father supported S.P.M. during the time they spent in Washington. This support continued up until the natural father’s arrest four months prior to filing of the petition. Because he did not fail to support S.P.M. for a year prior to filing of the petition, the natural father contends that his consent is necessary for the adoption of S.P.M.

This contention is without merit. Parents are obligated to support their children. Sections 40-6-211, 40-6-214, MCA. See also §§ 41-3-101, 41-3-102(3), MCA. Absent a court order releasing him of this responsibility or altering this obligation the natural father was obligated to support all three children. He failed to meet this obligation. Also, there is no authority in Montana that supports crediting the natural father for the in-kind support provided for S.P.M. against the entire support obligation for all three children in this case. In our decision in In re Adoption of E.S.R. (1985), 218 Mont. 118, 706 P.2d 132, we did hold that in spite of a court order requiring husband to pay monthly child support, a subsequent oral agreement between the parties for each to support one child was valid and no support payments were necessary. Here, there is no evidence of such an oral agreement. Furthermore, any payment of support must first be applied to satisfy the earliest arrearage before it is applied to the support owed during the year before filing of the petition for adoption. In re Adoption of R.A.S. (1984), 208 Mont. 438, 443-444, 679 P.2d 220, 223. Thus, under this rationale, even if the District Court had considered the support provided S.P.M. in Washington as a substitute for an actual credit of child support payments, applying the monetary equivalent of this in-kind support over the obligation to support all three children would still create an arrearage for all the support payments owed. And finally, we endorse the District Court’s finding that:

“. . . where one parent is legally required to pay for the support of two or more minor children the residential custody of whom has been judicially awarded to the other parent, the payor parent should not be able to prevent the spouse of the custodial parent from adopting all the minor children by providing support specifically to one of the children even if the payor parent remains current in child support to that minor child within one year immediately preceding a petition for adoption.”

(Order of January 13, 1989, Finding No. 8.) Allowing parents to choose to support some of their minor children while neglecting others is contrary to the spirit of the law. Applying the equivalent of the support provided S.P.M. over the obligation to support all three children, the evidence of non-support over the required time is clear and convincing.

The natural father also maintains that the District Court did not consider the principles of Santosky when it terminated his parental rights. He contends that he was denied due process because he did not receive reasonable notice of his duty to pay child support.

We disagree. Due process requires that a party have notice of an action or judgment and a reasonable opportunity to be heard. In re Marriage of Robbins (1985), 219 Mont. 130, 711 P.2d 1347, 1352. Here, service of the decree of dissolution constituted sufficient notice of the natural father’s obligation to pay child support and did not deprive him of his due process rights, particularly where there was nothing in the record to indicate that the natural father’s original attorney was relieved before or after the child support order was entered, and where he failed to keep in contact with his attorney after he instituted the divorce proceedings. See e.g. Bennet v. Bennet (1984), 71 N.C.App. 424, 322 S.E.2d 439, 440. Furthermore, at all times that the natural father resided with S.P.M. in Washington he knew of the whereabouts of his former wife and other two children. He made no effort to provide for the support of the other two children during his absence. If he had he would have been apprised of the divorce decree and his obligation to pay support. Service of the decree upon his attorney is all the notice that due process requires in this case, and if appellant failed to receive actual notice of the support obligation it was the result of his own lack of diligence or possibly his own intentional acts.

The natural father also contends that his arrest and extradition to Montana for custodial interference forced the closure of his new business in Washington. He testified that upon returning to Montana to face the charges he was basically indigent and unemployed, except for some part time work, during the four months immediately preceding the filing of the adoption petition. The natural father maintains that the District Court erred in finding that his consent was not required for the adoption due to his failure to support because he did not have the ability to pay as ordered by the divorce decree. See § 40-8-111(1)(a)(v), MCA.

We disagree. Although the evidence does indicate that it would have been difficult for the natural father to pay the full amount of child support during this time, no evidence exists that the natural father was totally unable to pay any support at all during the one year period prior to the adoption. Indeed, when a parent is unable to pay his or her entire support obligation because of financial hardship, that parent is still obligated to make a diligent effort to comply with the decree and make whatever payments are possible under the circumstances. See e.g., In re Marriage of Smith (1984), 214 Mont. 66, 692 P.2d 1221. Otherwise, the payor parent should move the court for a modification of the support order in the divorce decree based upon a change of circumstances. See § 40-4-208(2) (b) (i), MCA. Here, there is no evidence that the appellant made any effort at all to comply nor did he move for a modification of the support order. The evidence is clear and convincing that he was able to make at least some payment at some time during the one year preceding the filing of the petition and that no payments were made during or prior to this time. We see no abuse of discretion by the District Court in finding that the appellant was able to pay at least a minimal amount of child support and failed to do so.

II.

Appellant also contends that the District Court abused its discretion in finding that it was in the children’s best interests to allow the stepfather to adopt them. He contends that the stepfather did not present clear and convincing evidence that it was in the children’s best interests for the adoption to be granted.

The natural father misstates the appropriate standard of review of the “best interest” question, The “clear and convincing evidence” standard of review applies only to the termination of parental rights. Once this Court has reviewed whether termination of parental rights is supported by clear and convincing evidence, we need only examine whether the conclusion that the adoption is in the children’s best interests is supported by substantial evidence. See e.g. In re Adoption of J.M.G (1987), 226 Mont. 525, 736 P.2d 967.

Here, the record contains substantial evidence supporting the conclusion that the adoption was in the children’s best interest. Specifically, this evidence includes the June 8, 1988 report from the Department of Family Services, wherein Larry G. Burns, a Family Resource Specialist for the Department, reports that S.P.M. related to him that he would like his stepfather to be his father, (report of the Department of Family Services, June 8, 1988, p.6) The stepfather testified that he thought he could give the children a good life and love them, and he testified that he concurred in the recommendations and statements about the home life of the family in the report, which were overwhelmingly favorable toward the adoption. Because there is substantial evidence supporting the conclusion of the Court that the adoption was in the children’s best interests, the District Court did not abuse its discretion.

AFFIRMED.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, HUNT and BARZ concur.


source: Caselaw Access Project

author: JUSTICE WEBER

license: Public Domain

text:
    LAWRENCE W. ERICKSON, Plaintiff and Appellant, v. DAIRYLAND INSURANCE COMPANY, Defendant and Respondent.
    No. 89-376.
    Submitted on Briefs Nov. 21, 1989.
    Decided Jan. 18, 1990.
    785 P.2d 705.

      Robert Kolesar, Bozeman, for plaintiff and appellant.
    Albert A. Frost, Bozeman, for defendant and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

This appeal arises from an order by the District Court, Eighteenth Judicial District, Gallatin County, Montana, granting summary judgment in favor of defendant. Plaintiff appeals. We affirm.

The issues presented for our review are:

1. Did the District Court err in granting summary judgment in favor of defendant?

2. Did the District Court err in denying costs to defendant?

Mr. Erickson suffered injuries while riding his motorcycle in April 1988, in Bozeman, Montana. An automobile driven by Wanda Youngblood made a left turn in front of Mr. Erickson, striking him. Ms. Youngblood carried no liability insurance at the time. Mr. Erickson submitted a claim to his own insurance company, Dairyland Insurance Company (Dairyland), and it accepted liability. Dairyland paid Mr. Erickson $25,000 under the uninsured motorist provision, and also paid $5,000 for the loss of his motorcycle. Mr. Erickson demanded an additional $25,000 payment, contending that his policy provided coverage for own bodily injuries. When Dairyland denied his claim, Mr. Erickson brought suit. Mr. Erickson moved for judgment on the pleadings, requesting court interpretation of his policy. Dairyland moved for summary judgment on the issue of liability, which was granted by the District Court. From this judgment, Mr. Erickson appeals.

I

Did the District Court err in granting summary judgment in favor of defendant?

Summary judgment is only appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Rule 56(c) M.R.Civ.P. On appeal, this Court’s standard of review is to determine if any genuine issues of material fact exist, which would preclude summary judgment, Kelly v. Widner (1989), [236 Mont. 523,] 771 P.2d 142, 144, 46 St.Rep. 591, 593.

On October 15, 1987, Mr. Erickson purchased an insurance policy from Waite & Company, an agent of Dairyland, through Ms. Kimberly Jerome. On this insurance application, under item 5, “Coverage,” two boxes are checked: the box indicating “Full Package” and the box indicating the motorcycle model group. Item 5 also states, “No coverage unless checked or premium shown below.” The boxes indicating coverage for uninsured motorists and medical payments are not checked. The application specified that the “Full Package” includes 25/50/5 bodily injury and property damage and comprehensive and collision. A physical damage deductible amount was filled in at $250. Mr. Erickson paid the total premium amount of $336.

The application contained an “Uninsured Motorists Coverage Rejection Statement,” which was left unsigned by Mr. Erickson. Mr. Erickson was subsequently billed for uninsured motorist coverage. He paid the additional premium, thereby obtaining the uninsured motorist coverage.

Mr. Erickson was issued a policy entitled “Plain Talk Motorcycle Policy,” with a declarations page. The declarations page lists coverages and limits of liability, and states, “We insure you only for the vehicle(s) described on this page, and only for those coverages which are shown below. The liability is limited by the terms of this page.” Mr. Erickson’s coverage is then listed as bodily injury liability, excluding passenger coverage; property damage liability; uninsured motorist; comprehensive; and collision. The limits of liability on each item are specified. The declarations page is expressly made a part of the policy.

The policy itself is divided into ten sections, as follows:

“I. Definitions
“II. Insuring Agreement
“HI. Motorcycles We Insure
“IV. What to do when an Accident Happens
“V. Liability Insurance
“VI. Medical Expense Insurance
“VII. Uninsured Motorist Insurance
“VIII. Collision Insurance
“IX. Comprehensive Insurance
“X. General Policy Provisions

The first page of the policy states:

“Insuring Agreement
“Upon your payment of the premiums we agree that this policy provides the various kinds of insurance you have selected as shown on the declarations page. The declarations page is a part of this policy.” (Emphasis in original.)

Under Part V, “Liability Insurance,” the policy states:

“We promise to pay damages for bodily injury or property damage for which the law holds you responsible because of a motorcycle accident involving a motorcycle we insure.” (Emphasis in original.)

Under Part VI, “Medical Expense Insurance,” the policy states:

“We promise to pay medical expenses for your bodily injury, sickness, diseases or death suffered in a motorcycle accident while occupying a motorcycle or from having been struck by a motor vehicle. We’ll pay the medical expenses incurred within one year from the date of the motorcycle accident, within the limits and subject to a $50 deductible amount applicable to each person per accident.” (Emphasis in original.)

Mr. Erickson was also issued five endorsements with this policy, one of which was a “Named Insured Exclusion Endorsement.” That endorsement stated:

This endorsement modifies your policy in the following way:

“LIABILITY INSURANCE
“The liability insurance provided by this policy doesn’t apply to injuries to the person named on the declarations page. It doesn’t apply to the husband or wife of that person if they are living in the same household.”

An insurance policy is subject to the general rules of contract law. Hildebrandt v. Washington Nat. Ins. Co. (1979), 181 Mont. 231, 234, 593 P.2d 37, 39. When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone if possible. Section 28-3-303, MCA. A written contract supersedes all oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument. Section 28-2-904, MCA. Whenever the terms of an agreement have been reduced to writing by the parties, it is considered as containing all those terms. Section 28-2-905(1), MCA.

Mr. Erickson contends that the language of the policy is ambiguous and should be construed against the drafter, Dairyland, to provide coverage for his bodily injuries. He contends the policy does not adequately differentiate between different types of bodily injury. He contends that his coverage for “bodily injury liability” should include all bodily injury.

The District Court determined that the language of the policy was clear and unambiguous, and that by its language the bodily injury liability coverage which Mr. Erickson purchased only covered bodily injury damage for which Mr. Erickson could be held legally liable; it did not include coverage for Mr. Erickson’s own bodily injuries. The court determined Mr. Erickson did not purchase medical expense coverage, which would have covered his own injuries. The court also considered depositions of Mr. Erickson and Ms. Jerome. The District Court granted summary judgment in favor of Dairyland on the issue of liability, concluding that no genuine issues of material fact existed.

The plain language of the declarations page which is part of the policy, is not ambiguous in stating that Mr. Erickson’s coverage was for “bodily injury liability.” Reference to the “Liability” section of the policy further clarifies this coverage. It states, “We promise to pay damages for bodily injury ... for which the law holds you responsible . . .” Under the definitions section the policy defines “damages” as the “cost of compensating those who suffer bodily injury . . .” Additionally, the commonly understood meaning of “liable” is “[b]ound or obliged in law or equity; responsible” Black’s Law Dictionary 1060 (4th Ed. 1968). “In interpreting and applying insurance contracts, the common rather than technical usage and meaning of definitional terms and policies should be used.” Bauer Ranch v. Mountain W. Farm Bur. Mut. Ins. (1985), 215 Mont. 153, 156, 695 P.2d 1307, 1309. “If the language is unambiguous, and subject to only one meaning, there is no basis for the interpretation of policy coverage under the guise of ambiguity.” Bauer Ranch, 695 P.2d at 1309, citing Nelson v. Combined Ins. Co. of America (1970), 155 Mont. 105, 467 P.2d 707. We conclude that the policy language was unambiguous in covering only bodily injury liability, which does not include Mr. Erickson’s own injuries. Mr. Erickson’s attempt to create an ambiguity is unpersuasive.

Mr. Erickson also contends that the insurer failed in its duty to define any limitations or exclusions in clear and explicit terms. Mr. Erickson misapplies this requirement since the present case does not involve an exclusion. The insurance company is not required to expressly exclude coverage which is not purchased. Mr. Erickson’s argument in this regard also fails since he received from Dairyland the named insured exclusion endorsement, which expressly informed him that coverage for his own bodily injuries was excluded.

Mr. Erickson also urges that his election to purchase “Full Package” coverage led him to believe this included coverage for his own medical expenses.

“However, intent of the parties is only looked to when the agreement in issue is not clear on its face. Glacier Campground v. Wild Rivers, Inc. (1979), 182 Mont. 389, 394, 184 Mont. 543, 547, 597 P.2d 689, 692. Where the contractual language is clear and unambiguous on its face, it is this Court’s duty to enforce the contract as drafted and executed by the parties. Wortman v. Griff (1982), 200 Mont. 528, 536, 651 P.2d 998, 1002.”

Monte Vista Co. v. Anaconda Co. (Mont. 1988), [231 Mont. 522,] 755 P.2d 1358, 1362, 45 St.Rep. 809, 814. As previously discussed, the language of the insurance contract is unambiguous and is enforceable as drafted.

We conclude that Mr. Erickson failed to present any genuine issues of material fact regarding the extent of his insurance coverage. The District Court was correct in determining that according to the plain language of the policy, Mr. Erickson was not covered for his own medical expenses, and that he had failed to present any genuine issues of material fact in this regard. We affirm the District Court’s grant of summary judgment in favor of Dairyland.

II

Did the District Court err in denying costs to defendant?

Defendant submitted a verified memorandum of costs and disbursements for a total amount of $432.60. This amount included deposition costs of Kimberly Jerome and Lawrence Erickson. The record contains no objection to these costs by plaintiff. The District Court denied these costs, however, without explanation. On appeal defendant contends these expenses should have been allowed, citing Frigon v. Morrison - Maierle, Inc. (Mont. 1988), [233 Mont. 113,] 760 P.2d 57, 64, 45 St.Rep. 1344, 1353; Roy v. Neibauer (1981), 191 Mont. 224, 227-28, 623 P.2d 555, 557.

Costs are generally allowable to the prevailing party pursuant to Rule 54(d), M.R.Civ.P., unless the court directs otherwise, except where expressly provided by statute. Carroccia v. Todd (1980), 189 Mont. 172, 178, 615 P.2d 225, 228.

In the present case, costs to defendant are statutory pursuant to § 25-10-102, MCA, which provides costs to defendant upon a judgment in his favor in actions mentioned in § 25-10-101, MCA. From the complaint of the plaintiff, it does not appear that this claim falls within any of the cases enumerated in § 25-10-101, MCA. The District Court may in its discretion choose to allow costs or not allow costs. Section 25-10-103, MCA. In the absence of any showing of abuse of discretion by the District Court, we sustain the court’s ruling. Swenson v. Buffalo Bldg. Co. (Mont. 1981), [_Mont__,] 635 P.2d 978, 985, 38 St.Rep. 1588, 1596. We affirm the District Court’s denial of costs to defendant.

Affirmed.

JUSTICES HARRISON, BARZ, SHEEHY and McDONOUGH concur.


text:
    FRANCES JEAN VUKASIN, Plaintiff and Respondent, v. D.A. DAVIDSON & CO., a Montana Corp., and Oswald Aaserud, Defendants and Appellants.
    No. 89-424.
    Submitted on Briefs Dec. 1, 1989.
    Decided Jan. 18, 1990.
    785 P.2d 713.
    Keith Strong, Dorsey & Whitney, Great Falls, John G. Crist, Dorsey & Whitney, Billings, for D.A. Davidson, Inc.

      Paul R. Haffeman, Cure, Borer & Davis, Great Falls, for Aaserud. Michael J. Best, Best Law Offices, Great Falls, for plaintiff and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from an order by the District Court, Eighth Judicial District, Cascade County, Montana, denying a motion to stay proceedings in District Court. We reverse.

The controlling issue is the enforceability of an arbitration clause between D.A. Davidson and its employee.

Ms. Vukasin began working for D.A. Davidson (Davidson) on August 21, 1979. In 1985 Davidson began implementing annual performance reviews which were completed in May of each year. Ms. Vukasin signed these performance reviews in May of 1985,1986, and 1987. In the years 1986 and 1987, Ms. Vukasin also received a bonus in May. In 1986 she received this bonus on May 1, 1986, and the performance review was signed on May 20, 1986. Both the 1986 and 1987 performance reviews contained a statement directly above the employee signature line, which provided:

“EMPLOYMENT WITH D.A. DAVIDSON & CO. IS SUBJECT TO ARBITRATION. Read carefully:
“I acknowledge that items contained in this Performance Review were reviewed with me this date. I further acknowledge that I may terminate my employment with D.A. Davidson & Co. (the ‘Company’) at any time for whatever reasons just as the Company may terminate my employment at any time for whatever reasons. I also acknowledge and agree that any controversy between myself and the Company arising out of my employment or the termination of my employment with the Company for any reason whatsoever shall be determined by arbitration in accordance with the rules and procedures of the Arbitration Committee of the National Association of Securities Dealers, Inc., or the American Arbitration Association as I may elect or in the absence of any election by me within five (5) business days of the date of a written request by the Company to make such election, as the Company elects.”

On December 12, 1988, Ms. Vukasin filed a complaint in District Court against Davidson, alleging that an employee of Davidson, Mr. Oswald Aaserud, assaulted her on April 30, 1988. She alleged that Mr. Aaserud requested that her son, a former Davidson employee, meet him on Saturday, April 30, at the Davidson offices. She accompanied her son to this meeting. Upon entering the room, she alleged that Mr. Aaserud stated, “I don’t deal with mothers,” then grabbed her by her upper arms and shook her. In her complaint Ms. Vukasin alleged assault and battery by Aaserud, and that he was acting within the course and scope of his employment at the time of the incident, thereby rendering Davidson liable for damages. She also alleged that Davidson was negligent in hiring or retaining Aaserud as an employee. Ms. Vukasin asserted damages in the form of mental and emotional distress, pain and suffering, loss of capacity to pursue her established course of life, loss of wages, benefits, future earning capacity, and past and present medical and therapy expenses. Mr. Aaserud was also named as a defendant in the suit.

On January 16 and 17, 1989, defendants filed motions to dismiss for lack of jurisdiction or in the alternative, to stay the proceedings in the District Court and to compel Ms. Vukasin to submit this action to arbitration. After consideration of briefs, affidavits, and documentary evidence, and after a hearing, the District Court denied the motions, refusing to enforce the arbitration agreement. This appeal by defendants followed.

The Uniform Arbitration Act, 9 U.S.C. § 1 et seq. governs the present dispute. Section 2 of that Act states:

“A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

This section was discussed in Southland Corp. v. Keating (1984), 465 U.S. 1, 10, 104 S.Ct. 852, 858, 79 L.Ed.2d 1, 12, as follows:

“In enacting § 2 of the federal Act, Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.
“Congress has thus mandated the enforcement of arbitration agreements.”

This Act was recently discussed by the Ninth Circuit in Cohen v. Wedbush, Noble, Cooke, Inc. (9th Cir. 1988), 841 F.2d 282, as follows:

“The Arbitration Act thus ‘reverse [s] centuries of judicial hostility to arbitration agreements,’ Scherk v. Alberto-Culver Co., 417 U.S. 506, 510, 94 S.Ct. 2449, 2453, 41 L.Ed.2d 270 (1974), placing such agreements’ ’’upon the same footing as other contracts,”* id. at 511, 94 S.Ct. at 2453 (quoting H.R.Rep. No. 96, 68th Cong., 1st Sess. 1, 2 (1924)), and requiring the courts to ‘rigorously enforce’ them. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221, 105 S.Ct. 1238, 1242, 84 L.Ed.2d 158 (1985).
“The Act creates ‘a body of federal substantive law of arbitrability,’ enforceable in both state and federal courts and preempting any state laws or policies to the contrary. Moses H. Cone Mem. Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983); see Southland Corp. v. Keating, 465 U.S. 1, 10-12, 16, 104 S.Ct. 852, 858-59, 861, 79 L.Ed.2d 1 (1984). The availability and validity of defenses against arbitration are therefore to be governed by application of federal standards. See Bayma v. Smith Barney, Harris Upham & Co., 784 F.2d 1023, 1024, (9th Cir. 1986).” Cohen, 841 F.2d at 285.

Davidson contends that Ms. Vukasin must submit her dispute to arbitration, pursuant to the agreement which she signed, and is precluded from bringing suit in district court. Ms. Vukasin however, contends that she did not “knowingly” agree to arbitrate, and that there was no consideration for her agreement to arbitrate. She contends that the District Court has jurisdiction to determine the validity of the arbitration clause, which she claims is invalid. Davidson contends that the performance review was a valid employment agreement for which there was consideration, and that the arbitration clause cannot be severed from the entire agreement.

The District Court considered affidavits by Ms. Vukasin and two other Davidson employees. By affidavit Ms. Vukasin states that she was told she received her bonus for the year 1986 because the company had a good year. She also states:

“4. At no time was I told that I was being given this money in exchange for signing an arbitration agreement. I was told that by signing the evaluation sheet that I was in agreement with the way I was evaluated as to the percentages and that no one got the top percentile.”

The affidavits by the other two employees state that they were told they received the bonuses because Davidson had a good year, and that they were never told that they were signing the arbitration agreement in return for money. Stuart Nicholson, a Davidson officer, states by affidavit that the arbitration agreement was discussed, that, signing it was optional, but that those employees who signed received a bonus.

The District Court determined that the acknowledgment paragraph containing the arbitration clause was “not part of a document purporting to be an employment contract . . .” It also rejected as not persuasive the affidavit by Stuart Nicholson. The court found that it had jurisdiction to determine the validity of the arbitration agreement and that it was invalid in its making because the agreement was not bargained for and Ms. Vukasin did not knowingly enter it.

The document signed by Ms. Vukasin, entitled “Performance Review Form,” evaluated her performance as an employee of Davidson for the period of May 31, 1986 to May 31, 1987. It detailed specific performance ratings in six areas of performance, and gave an overall performance rating, with opportunity for suggested improvements in employee performance. The document specified Ms. Vukasin’s current salary with a recommended salary increase directly related to her overall performance rating. Next to the salary statement is written “Bonus $349.99.” The above-mentioned acknowledgment containing the arbitration clause is then signed by both Ms. Vukasin and her manager. The performance review spells out a binding performance rating and a recommended salary increase. It contains Ms. Vukasin’s acknowledgment that she has reviewed these items, and her acknowledgment that either she or her employer may terminate employment at any time for whatever reasons. This document is clearly a binding agreement with regard to employment between Ms. Vukasin and her employer. The arbitration clause is only a part of the agreement with regard to her employment.

Having established that the arbitration clause was a part of Ms. Vukasin’s employment agreement, we now turn to the issue of its enforceability. In the recent case of Larsen v. Opie (Mont. 1989), [237 Mont. 108,] 771 P.2d 977, 46 St.Rep. 660, we discussed the enforceability of an arbitration clause in an analogous context. In Larsen, an investor sued Piper, Jaffray & Hopwood, and their broker for misrepresentation and fraud in the inducement of signing option agreements and margin contracts, which contained arbitration agreements. Larsen contended that these option agreements and margin contracts were void in their inception in that they were fraudulently induced. He contended that if the agreements were void, the arbitration clause could not be binding. Larsen also contended that the arbitration clauses were not binding since defendants did not specifically discuss these clauses with him, and because they were not bargained for agreements.

In analyzing the issue of whether the district court had jurisdiction to determine the validity of the contracts, and the arbitration clauses, this Court stated:

“Section 4 of the [Uniform Arbitration] Act provides one of the few times when a contract containing an arbitration clause can be addressed by a court:
“ ‘A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court.... The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. . . If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof.’ [Emphasis in original.]
“The United States Supreme Court has discussed the issue of who is to determine issues involving arbitration and the Arbitration Act in Prima Paint Corp. v. Flood & Conklin Mfg. Co. (1967), 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270. The Supreme Court looked to the Arbitration Act for guidance, recalling that Section 4 allows for judicial intervention in cases where the validity of the arbitration clause is at issue.
“ ‘Under Section 4, . . . the federal court is instructed to order arbitration to proceed once it is satisfied that “the making of the agreement for arbitration or the failure to comply [with the arbitration agreement] is not in issue.” Accordingly, if the claim is fraud in the inducement of the arbitration clause itself — an issue which goes to the “making” of the agreement to arbitrate — the federal court may proceed to adjudicate it. But the statutory language does not permit the federal court to consider claims of fraud in the inducement of the contract generally.’ Prima Paint, 388 U.S. at 403-404, 87 S.Ct. at 1806, 18 L.Ed.2d at 1277.
“The issue is the same here. There is a question of whether the agreements between Larsen and Piper, Jaffray & Hopwood are void for fraud in the inducement. Prima Paint has specifically held that issues which address fraud in the inducement are issues to be decided in arbitration. Appellant here does dispute the validity of the arbitration clause, but only in connection with the contract as a whole.”

Larsen, 771 P.2d at 979-80.

In the present case, the same analysis applies. The District Court only has jurisdiction if the issue is the making of the arbitration portion of the agreement. If the issue is the validity of the entire agreement, this must be submitted to the arbitrators. See also Passage v. Prudential-Bache Securities, Inc. (1986), 223 Mont. 60, 69, 727 P.2d 1298, 1303, cert. denied, 480 U.S. 905, 107 S.Ct. 1347, 94 L.Ed.2d 518 (1987), (“Issues which go to the formation of the contract as a whole may properly be decided by an arbitrator”).

Ms. Vukasin’s contentions that there was no consideration for her agreement to arbitrate, and that she was not told that her bonus was in exchange for her agreement to arbitrate assumes that the arbitration clause is severable from the entire agreement. We find no merit to this assumption. “[W]here the agreement to arbitrate is integrated into a larger unitary contract, the consideration for the contract as a whole covers the arbitration clause as well.” W.L. Jorden & Co., Inc. v. Blythe Industries, Inc. N.D. Ga. (1988), 702 F.Supp. 282, 284. Accord Sarnoff v. American Home Products Corp. (7th Cir. 1986), 798 F.2d 1075 (court rejected argument that a choice of law provision which was part of a larger contract was not enforceable because it was not separately bargained for, stating that this argument erroneously “assumes that every provision in a contract must have a separately bargained for and stated consideration”); Kroblin Refrigerated Xpress, Inc. v. Pitterich (3rd Cir. 1986), 805 F.2d 96, 108-09 (consideration for entire sales agreement acted as consideration for non-competition agreement which was integral part of sales agreement). We conclude that the validity of the arbitration clause is not severable from the validity of other parts of the employment agreement. Since the District Court has no jurisdiction to determine the validity of the entire agreement, any such issues must be submitted to arbitrators.

Ms. Vukasin also contends that the allegation of assault is outside the scope of the arbitration clause since this is not an area one would expect to be encompassed by an arbitration agreement. However, the clause which Ms. Vukasin signed requires her to arbitrate:

“any controversy between myself and the Company arising out of my employment or the termination of my employment with the Company for any reason whatsoever.”

Courts have held similar broad arbitration provisions to encompass tort claims. In Zolezzi v. Dean Witter Reynolds, Inc., (9th Cir. 1986), 789 F.2d 1447, 1449-50, the court held that Zolezzi had agreed to arbitrate intentional tort claims of defamation and invasion of privacy which involved events occurring one year after he quit working for Dean Witter when he had agreed to arbitrate “any controversy . . . arising out of the employment or termination of employment” he had with Dean Witter. In Aspero v. Shearson American Express, Inc. (6th Cir.1985), 768 F.2d 106, 109, cert. denied, 474 U.S. 1026, 106 S.Ct. 582, 88 L.Ed.2d 564 (1985), the court held that an ex-employee’s claims of defamation, invasion of privacy, and intentional infliction of emotional distress against Shearson were within the scope of a clause requiring the arbitration of “any controversy . . . arising out of the employment or termination of employment.” In McGinnis v. E.F. Hutton and Co., Inc. (6th Cir.1987), 812 F.2d 1011, the court held that allegations of outrageous conduct, breach of contract, and retaliatory discharge were arbitrable where clause required arbitration of “any controversy . . . arising out of the employment or termination of employment.”

In Moses H. Cone Hospital v. Mercury Const. Corp. (1983), 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765, 785, the United States Supreme Court emphasized that “questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration,” further stating:

“Section 2 is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary. The effect of the section is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act.
“The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.”

In the present case, the incident occurred on Davidson’s premises, involved a Davidson employee, and culminated in Ms. Vukasin terminating her employment with Davidson. The present dispute arises out of the termination of her employment. We conclude that the present controversy is clearly subject to the arbitration agreement. We reverse the order by the District Court and direct the court to grant defendants motions to stay the proceedings pending arbitration.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, SHEEHY, McDONOUGH, HUNT and BARZ concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DOUGLAS LEE LAVERDURE, Defendant and Appellant.
    No. 89-390.
    Submitted on Briefs Dec. 7, 1989.
    Decided Jan. 19, 1990.
    785 P.2d 718.

      Douglas C. Anderson, Missoula, for defendant and appellant.
    Marc Racicot, Atty. Gen., Paul D. Johnson, Asst. Atty. Gen., Helena, Robert Deschamps, III, County Atty., Missoula, for plaintiff and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Defendant, Douglas Laverdure, was charged in the District Court for the Fourth Judicial District, Missoula County, with the felonies of aggravated burglary and criminal mischief, and misdemeanor assault. At the close of the State’s case, the defense moved for directed verdict, alleging that the State had not presented sufficient evidence to sustain a verdict. The motion was denied, the jury returned a verdict of guilty on all three counts, and defendant was convicted. He appeals. We affirm.

Defendant presents the following two issues on appeal:

1. Did the District Court err in denying the defendant’s motion for directed verdict?

2. Did the prosecutor’s remarks during closing arguments deprive defendant of a fair trial?

Substantial evidence in the record shows: The victim, Betty Bullchild, and her two children lived in a trailer court near French-town, Montana. Living in the same trailer court were defendant, who lived with Lori Wessel, and defendant’s sister, Debbie Laverdure. At around 3:19 a.m. on October 4, 1988, Bullchild called the Missoula County Sheriff’s Department to report that someone had thrown a rock through her trailer window. A friend of hers, Mervin Pine was with her when the rock came through the window, and when the Deputy Sheriff came to investigate. The Deputy testified that both Pine and Bullchild were drinking but appeared sober. He testified Bullchild suspected defendant was the person that threw the rock through the window so the Deputy went to his trailer to investigate. He testified that the lights were all out at the defendant’s trailer and that there was no one outside. He further testified that this ill-fated relationship between defendant, his sister, girlfriend and Bullchild had been going on for some time and he had personally dealt with the same group of people before on other vandalism calls.

About an hour later, the Deputy received a second phone call, this time to report that Bullchild had been assaulted and had been taken to her sister’s house. The Deputy testified that Bullchild was “possibly in shock” when he talked to her and had blood all over her face and hands. Bullchild testified that defendant, Wessel and Debbie Laverdure had broken windows in her trailer and then forced their way into the house and beat her. She testified that defendant found her in her bedroom, yelled to the others “Here she is”, and then beat her up. During the assault, Bullchild’s two children were beneath the covers on the bed.

After investigating the trailer, the Deputy testified that he found blood on the floor in the kitchen and down the hallway and that all the windows in Bullchild’s trailer had been broken out. The windows of Bullchild’s car were also broken out.

Defendant personally testified but gave a completely different version of the facts. When the Deputy went to defendant’s home after the second call, defendant and Wessel came to the door. The Deputy testified that defendant reported to him that somebody had broken out one of his windows. Defendant’s testimony painted Bullchild and Pine as the aggressors, and he denied beating up Bullchild. The Deputy testified that defendant told him that an Indian, (Mervin Pine) had thrown a rock at him, missed and broke the window. The Deputy arrested defendant, Debbie Laverdure and Wessel. Separate charges were filed and separate trials were held. At the close of the State’s case against defendant, the defense moved for directed verdict, alleging that the state had not presented sufficient evidence to sustain a verdict based on the inconsistencies in the various versions of the incident as told by Bullchild. The motion was denied. Defendant was convicted and this appeal follows.

I

Did the District Court err in denying the defendant’s motion for directed verdict?

Defendant contends there was not sufficient evidence to support his conviction, and that the denial of his motion for directed verdict was an abuse of discretion. He maintains that the State’s case was based solely on the testimony of Bullchild and that her story varied from the time of the initial investigation through the trial.

The State urges that a district court may only grant a motion for directed verdict when:

“there is no evidence upon which the jury could base a verdict; that is, the defendant is entitled to an acquittal if reasonable men could not conclude from the evidence taken in a light most favorable to the prosecution that guilt has been proven beyond a reasonable doubt.”

State v. White Water (Mont. 1981), [_Mont._,] 634 P.2d 636, 38 St.Rep. 1664. The State further maintains that it is “within the province of the trier of fact to determine” which evidence shall prevail when it is conflicting, and that the jury is the exclusive judge of a witness’ credibility. We agree.

When reviewing the denial of a motion for directed verdict, only substantial evidence in the record supporting the jury’s finding is required. Lane v. Dunkle (Mont. 1988), [231 Mont. 365,] 753 P.2d 321, 45 St.Rep. 686. The standard of review on issues of substantial evidence is that the conviction cannot be overturned if evidence, when viewed in a light most favorable to the prosecution, would allow a rational trier of fact to find essential elements of the crime beyond a reasonable doubt. State v. Buckingham (Mont.1989), [240 Mont. 252,] 783 P.2d 1331, 46 St.Rep. 2102. The weight of evidence and credibility of witnesses is exclusively within the province of the jury. State v. Urness (Mont. 1989), [239 Mont. 59,] 778 P.2d 419, 46 St.Rep. 1510. The jury heard the evidence and testimony of the witnesses and found defendant was guilty of the charges against him. Bullchild never changed her testimony as to who assaulted her. Even with the inconsistencies in her testimony, the jury found defendant to be guilty of the charges against him beyond a reasonable doubt. We hold the District Court did not err in denying the defendant’s motion for directed verdict.

II

Did the prosecutor’s remarks during closing arguments deprive defendant of a fair trial?

Defendant contends that the prosecution made several improper comments during closing argument indicating that defendant was lying. Defendant concedes that no objection was made at trial to these comments but contends that failure to object should not necessarily bar review by this Court, citing case law from other jurisdictions.

The State maintains that the statements made were not improper and that failure to object at trial does bar review. The State further urges that even if the issue is reviewable, there was no error in the statements made. We agree.

Objections to closing arguments made for the first time on appeal are too late. State v. Pease (1986), 222 Mont. 455, 472, 724 P.2d 153, 163. Furthermore, the State’s comments were nothing more than an opinion and “an opinion based on the State’s analysis of evidence” does not constitute an expression of the State’s personal opinion of guilt and is not prejudicial. State v. Clawson (Mont. 1989), [239 Mont. 413,] 781 P.2d 267, 46 St.Rep. 1792. We hold the prosecutor’s remarks during closing arguments did not deprive defendant of a fair trial.

Affirmed.

JUSTICES HARRISON, SHEEHY, McDONOUGH and HUNT concur.


author: JUSTICE McDONOUGH JUSTICE BARZ,

text:
    In the Matter of the PETITION FOR CHANGE OF NAME OF JAMES JOSEPH IVERSON, a Minor Child, Karon Lynn Hepp, Petitioner and Appellant, and RONALD EDWARD IVERSON, Respondent and Respondent.
    No. 89-519.
    Submitted on Briefs Dec. 7, 1989.
    Decided Jan. 24, 1990.
    786 P.2d 1.
    James D. Elshoff, Great Falls, for petitioner and appellant.
    E. Lee LeVeque, Conklin, Nybo, LeVeque & Murphy, Great Falls, for respondent and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Karon Lynn Hepp filed a petition for name change of James Joseph Iverson, a minor child, on May 5, 1989. A hearing on the matter was held and on August 7, 1989, the District Court for the Eighth Judicial District, Cascade County, dismissed the petition. We affirm.

The sole issue on appeal is:

Whether the District Court abused its discretion when it denied Karon Hepp’s petition for change of name.

On May 26,1988, Karon Hepp (Karon) gave birth to James Joseph Iverson (J.I.). The natural father of J.I. is Ronald Iverson (Ronald). Although Karon and Ronald were not married at the time of J.I.’s birth, both acknowledge that Ronald is the biological father and this fact is recorded on J.I.’s birth certificate.

According to Karon, following the birth of J.I., Ronald promised to marry her. As a result of this promise, Karon gave J.I. Ronald’s surname. J.L’s first and middle names were taken from his two grandfathers. Eventually the engagement fell through and because Karon felt that Ronald had not paid adequate attention to J.I., she filed a petition to change J.I.’s name to Joseph Scott Hepp.

In compliance with Montana law, Ronald was served and interested parties were notified through publication with a local newspaper. A trial was held on August 7,1989, and the District Court found that changing J.I.’s name was not in his best interest. Accordingly, the petition was dismissed. This appeal followed.

A change of name proceeding is statutory and is governed by § 27-31-101, MCA, et seq. Unfortunately, these statutes do not set forth with any specificity the acceptable reasons for allowing the change of name of a person. However, in two recent decisions, we have held, that in contested cases when one parent seeks to change his or her child’s name, the court shall determine whether the best interest of the child will be served. If the petitioner in such cases fails to make such a showing, it is proper for the district court to dismiss the petition. In re Marriage of Firman (1980), 187 Mont. 465, 610 P.2d 178; In re Marriage of Overton (1983), 207 Mont. 292, 674 P.2d 1089.

Review of a district court’s ruling in these matters is very narrow. A lower court’s decision regarding the best interest of the child will not be overturned on appeal unless there is a clear abuse of discretion. Allen v. Allen (1978), 175 Mont. 527, 575 P.2d 74. In Overton, we said:

“We will not substitute our judgment for that of the trier of fact, but rather will only consider whether substantial credible evidence supports the findings and conclusions. These findings will not be overturned by this Court unless there is a clear preponderance of the evidence against them. We will view the evidence in a light most favorable to the prevailing party, recognizing that substantial evidence may be weak or conflicting with other evidence, yet still support the findings.” (Citations omitted.) 674 P.2d at 1090.

In light of these policies, we must review the decision of the District Court in a light most favorable to Ronald. If there is not a clear showing of abuse of discretion, the judgment of the District Court must stand.

The lower court held that Karon’s reasons for changing J.I.’s name were not persuasive and were not in the best interests of the child. It based this conclusion upon substantial, albeit conflicting evidence.

Karon maintains that she gave J.I. Ronald’s surname because of his promise to marry her. She argues that this promise was breached, and that therefore she should be allowed to change the child’s surname to her own. She further argues that Ronald has not kept in contact with J.I. According to her petition, Ronald has not visited with J.I. since October of 1988. Accordingly, he has not contributed to the daily care and upbringing of the child.

The evidence presented by Ronald, however, tends to rebut Karon’s contentions. Ronald acted pro se throughout the lower court proceeding. He did not therefore file any memoranda or petitions. However, he did testify upon his own behalf at the lower court hearing. His testimony revealed that he had in fact attempted to maintain contact with J.I. since his break up with Karon. He testified that he had attempted to call Karon on numerous occasions in order to visit with his child, that each time he called, she hung up on him. He also stated that he has spoken with E. Lee LeVeque, a local attorney, in an attempt to gain visitation rights. Further, it is uncontested that he has continually paid child support. At this point he is paying $100.00 a month to the Department of Revenue, who passes the money on to Karon. Before J.I. was born, Ronald paid $1,007.60 directly to Karon for pregnancy and other child rearing expenditures.

The District Court took all of this evidence into consideration and determined that the proposed name change would not be in J.I.’s best interest. We note that most of this evidence is uncontradicted. Perhaps the only point of disagreement between Ronald and Karon is the extent of his visitation with J.I. Karon maintains that he has not maintained contact with the child; however, as we stated earlier, Ronald argues that he has attempted to remain in contact, but his efforts have been thwarted. The District Court viewed the testimony of both parties and the parties themselves. Based upon its perceptions of this testimony, it held that J.L’s name should not be changed. There is substantial evidence to support this conclusion and it is not arbitrary or capricious.

Karon desired to change J.I.’s name in a manner which would not only dispense with the child’s paternal surname, but also with his paternal grandfather’s first name. The lower court found such a result is not warranted in light of the facts that Ronald has acknowledged paternity, is paying child support and is seeking a court order granting him visitation rights. The lower court did not clearly abuse its discretion and we must therefore affirm.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and SHEEHY concur.

JUSTICE BARZ,

dissenting:

I dissent. The majority has determined that the District Court did not abuse its discretion when it determined that the best interest of the child was to retain his father’s surname. I agree that the proper test to be applied in this case is what is in the best interest of the child, however, I maintain that the District Court abused its discretion when applying this test.

In this case, the District Court cited the father’s acknowledgment of paternity, his payment of $100 per month in child support, and his purported plans to seek a court order granting him visitation rights with the child as the basis for dismissing the petition and determining that it was not in the child’s best interest to change his name. These three factors, however, do not even touch upon the child’s best interest. Instead, these factors merely reinforce traditional notions regarding the “proper” surname for a child. When viewed from a different perspective, these three factors could also be used to justify changing the child’s surname to that of the mother’s, as the mother has acknowledged maternity, she more than likely pays over $100 per month in supporting the child, and she has assumed the day to day responsibility and care for the child.

This Court has only had the opportunity to address this issue in two other instances. See, In re Marriage of Overton (1983), 207 Mont. 292, 674 P.2d 1089; In re Marriage of Firman (1980), 187 Mont. 465, 610 P.2d 178. These type of cases, however, are likely to arise with more frequency as people, and women in particular, question this society’s customs and traditions regarding surnames. This Court should therefore set forth clear guidelines that a district court could use when confronted with a petition to change a child’s surname. These guidelines should naturally be based on the child’s best interest and not the best interest of the mother or the father of the child.

Other jurisdictions have touched upon this subject and have set forth factors that a court should consider in determining a child’s best interest when confronted with a petition to change the child’s name. Included among these factors are the child’s preference, if any, the length of time the child has had the surname, the impact of the requested name change on both the mother-child and the father-child relationships, and any misconduct by either parent that would make that parent’s surname “possibly deleterious.” See, Hamman v. County Court, Jefferson County (Colo. 1988), 753 P.2d 743, 749. Other factors cited include the child’s age, the child’s embarrassment or discomfort when bearing a surname other than the family the child is presently living with, and the effect a surname may have on easing relations with a new family. In re Marriage of Schiffman (1980), 28 Cal.3d 640, 169 Cal.Rptr. 918, 922, 620 P.2d 579, 583. In addition, I would also include consideration of whether the child has any siblings, the child’s relationship to those siblings, and the impact on the child of having surnames different from the siblings’ surnames. These factors address more directly a child’s best interest when confronted with a name change than the father’s magnanimous acknowledgment of paternity, his ability to follow a court order of paying $100 per month to help support the child, and his plans to seek visitation rights with the child.

This Court’s past decisions on these type of cases also clearly demonstrate that guidelines are needed for the district courts, otherwise, the traditional preference for the father’s name will continue and a subtle form of discrimination against women will prevail. In particular, in Overton the mother and father were divorced when the mother was five months pregnant. Upon the child’s birth, the mother gave the child her surname. This Court noted that she had two other children with her surname and desired to have all her children bear the same name so as to prevent confusion and embarrassment. Two years after the child’s birth, the father petitioned to have the child’s surname changed to his and to clarify his visitation rights. The facts state that the father sought the child’s birth certificate from the county clerk and recorder’s office so as to enroll her in the Indian tribal rolls, but the facts do not indicate that changing the child’s surname was necessary for enrollment. Overton, 207 Mont. at 293- 94, 674 P.2d at 1090. The decision also does not state the factors that the district court relied upon when determining that the best interest of the child was to have her surname changed to that of the father’s. Instead, this Court merely held that the findings and conclusions regarding the name change was not clearly erroneous and that sufficient evidence supported the findings. Overton, 207 Mont. at 296, 674 P.2d at 1091. While this Court in Overton stated that the equality of sexes was not an issue, the absence of guidelines for the district courts in these types of situations allows for a subtle form of discrimination to occur by granting a preference for the father’s name.

In Firman, this Court expressed a prevailing attitude when it held that the district court “should not permit an unnatural barrier to come between [the father] and [his] children.” Firman, 187 Mont. at 470, 610 P.2d at 181. (Emphasis added.) The use of the words “unnatural barrier” are in themselves language that suggests a preference for the father’s name. A New Jersey court in In re Rossell (1984), 196 N.J. Super. 109, 481 A.2d 602, artfully stated that

“[t]he emergence of women as equals of men in our society may be our most significant revolution. The acceptance of that emergence is grudgingly slow; it is an acceptance which the courts must not impede. Names, as this case clearly illustrates, are intimately involved with the status of women. Rules of law for changing names cannot be. premised upon unacceptable theories of inequality. The right of a mother to have the child bear her name must be recognized as equal to that of the father.”

481 A.2d at 605. While the courts are not outwardly and perhaps not even knowingly contributing to this subtle form of discrimination against women, the fact remains that the absence of guidelines in these type of cases only act to impede women’s status in society. In Romeo and Juliet, Shakespeare wrote,

“What’s in a name? That which we call a rose by any other name would smell as sweet.” (II, ii, 43.)

However, Romeo’s and Juliet’s fateful outcome attests to the problems that arise as a result of a system based on customs and traditions attached to surnames. I would therefore reverse and remand this case to the District Court to assess whether the child’s name should be changed in light of the factors suggested in this dissent.


author: CHIEF JUSTICE TURNAGE

text:
    In Re The Marriage of PHYLLIS T. BARNARD, Petitioner and Respondent, and RODNEY D.A. BARNARD, Respondent and Appellant.
    No. 89-313.
    Submitted on Briefs Dec. 7, 1989.
    Decided Jan. 23, 1990.
    785 P.2d 1387.

      Rodney D.A. Barnard, Great Falls, pro se.
    Michael L. Fanning, Scott & Tokerud, Great Falls, for petitioner and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The parties’ marriage was dissolved in the District Court for the Eighth Judicial District, Cascade County, in April 1989. Rodney D. A. Barnard (Rod), appearing pro se, appeals. We affirm in part as modified, and remand in part.

The issues are:

1. Did the District Court err in determining that the shares of stock in the Tadej farm were not a part of the marital estate?

2. Did the court abuse its discretion in its division of property?

3. Did the court err in its award of child support?

4. Did the court err in awarding maintenance?

5. Did the court exceed its authority by ordering Rod to pay Phyllis’s attorney fees and accountant’s fee?

Rod and Phyllis were married in 1968. Two children were born of the marriage, one of whom had reached the age of majority prior to this dissolution and the other of whom attained the age of majority on November 20, 1989. During most of the marriage, the parties lived on Phyllis’s family’s farm (the Tadej farm) near Geraldine, Montana, where Rod took care of the hog operation and Phyllis worked as a homemaker and part-time ranch hand. Prior to the dissolution, Rod went to truck driving school and obtained a long-haul truck driving job out of Great Falls, Montana.

The court found that personal property in the marital estate, valued at $37,185, had been divided by the parties. It awarded additional personal property valued at about $1,380 to Rod. It awarded a paid-up life insurance policy on Phyllis, valued at $2,152.78, to phyllis to be held for the minor daughter’s benefit. The court found that stock in the Tadej farm which had been gifted to Phyllis was not part of the marital estate.

The court further required Rod to pay Phyllis $200 per month for current child support and $200 per month on back child support retroactive to the date of the parties’ separation on November 4, 1986. It ordered Rod to pay Phyllis maintenance of $200 per month for three years and to pay her attorney fees of $5,000 and accountant fees of $500.

I

Did the District Court err in determining that the shares of stock in the Tadej farm were not a part of the marital estate?

Rod maintains that he is entitled to a share of the Tadej farm corporation for his years of work there. In the alternative, he claims $30,000 as equity in the Tadej Ranch Company for housing from 1973 to 1986. He believes that because housing was credited as part of his earnings while he worked for the farm, he should have equity in the house.

The District Court found that from 1973 until near the end of the marriage, Rod worked on the Tadej farm. It found that, as an estate planning device, beginning in 1968, Phyllis’s parents gifted shares of stock in the farm to their five children. It found that Phyllis was given almost one-half of her shares of stock before the parties moved back to the farm to work. It found that all of the shares of stock are in Phyllis’s name and that at the time of trial she held title to 7.1 percent of the outstanding shares in the corporation. The court found:

“It is clear that the Tadejs’ gifts of stock to their children were not to compensate them and their spouses for work on the ranch. These gifts represent the Tadejs’ children’s inheritances and will only have value after both Mr. and Mrs. Tadej die. The Court finds that these shares of stock are not part of the marital estate and are not divisible in this proceeding.”

The court further found that there was no agreement between Rod and the farm that he would be compensated by stock in the corporation but that, instead, his salary, including numerous fringe benefits, was set annually at corporate meetings and was in line with the prevailing wage for farm and ranch workers.

A District Court is not required to include gift property given to one spouse during a marriage as part of the marital estate. Becker v. Becker (1985), 218 Mont. 229, 232, 707 P.2d 526, 528. For example, such gift property need not be included where none of the value of the property is a product of contribution from the marital effort. Becker, 707 P.2d at 528.

Here, the situation is somewhat different. Rod argues that the value of the stock in the farm increased due to his efforts in working on the farm. This may be true. However, Rod was paid a salary and benefits for his work, and he admitted at trial that there was no agreement that he would receive stock in the corporation as compensation. Additionally, the fact that Phyllis’s siblings who did not work on the ranch were given the same amount of stock as was phyllis indicates that the stock was a gift, not payment for work done. We hold that the District Court did not err in ruling that the stock in the Tadej farm was not a part of the marital estate.

Rod also argues that he was promised a salary equal to that which he had made working for cable TV and that his wage was reduced below that amount after he had worked for the farm for several years. But the record shows that his salary was set yearly at corporate meetings, which he attended, and he admitted at trial that he did not object to the salary he was paid. There is no record of any agreement that he would acquire equity in the house, which was owned by the corporation. We hold that there was no error in the absence of an award to Rod of equity in the corporation’s house.

II

Did the court abuse its discretion in its division of property?

Rod argues that he should have been awarded $3,000 in promissory notes from Phyllis’s father because they were made out to him. He also argues that he should be credited for a .243 caliber rifle awarded to him but which Phyllis sold to pay for their daughter’s glasses.

In reviewing a property distribution, this Court will not disturb the district court’s division unless there has been a clear abuse of discretion. In re Marriage of Hall (1987), 228 Mont. 36, 39, 740 P.2d 684, 686. The notes about which Rod complains, while made to Rod, were for a loan made to the Tadej farm during the marriage. In reviewing the District Court’s findings, we see that it awarded property valued at $16,150 to Phyllis (including the notes) and property valued at $22,415 to Rod. The findings show that the District Court was aware that the .243 rifle had been sold. In light of all the factors which must be considered under § 40-4-202, MCA, in property distributions, including the parties’ age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs, we hold there was no abuse of discretion.

III

Did the court err in its award of child support?

Rod argues that he should not be required to pay back support because his daughter is living with Phyllis’s parents, “it appears all her needs are being met,” and Phyllis is putting the support money into an account in the daughter’s name at D.A. Davidson.

Our standard of review of child support awards is whether the district court had clearly abused its discretion. In re Marriage of Benner (1985), 219 Mont. 188, 192, 711 P.2d 802, 804. This Court has further stated that a district court has jurisdiction to award child support retroactive to the time of separation of the parties. In re Marriage of DiPasquale (1986), 220 Mont. 497, 499, 716 P.2d 223, 225. The controlling statute, § 40-4-204, MCA, says that the amount of child support shall be an amount reasonable or necessary for the child’s support. The statute requires, at § 40-4-204(2) (b), MCA, that the district court consider the child’s financial resources. This was done in Finding XII, which noted the daughter’s money market account at D. A. Davidson. The statute also refers to the uniform child support guidelines under which $200 per month in support payments with $25,000 per year income is quite low. We conclude that even if the daughter’s needs are being met by her grandparents, the District Court awarded a reasonable amount of child support and acted within its discretion.

Rod also argues that the date set by the court as the date of the parties’ separation is wrong. The court set the date of separation as November 4, 1986. Phyllis testified that they separated in November 1986. We conclude this is substantial evidence to support that finding.

Rod raises one other matter under this issue. He asks who may claim his daughter as an income tax deduction for 1989. The District Court ruled that Rod could claim her for the year 1988, but it made no ruling for 1989. Rod’s support obligation ended in November 1989 when his daughter reached the age of eighteen. We hold that, provided he made his support payments in 1989, Rod shall be entitled to claim his daughter as an income tax deduction for that year. The parties and the court shall execute whatever documents are necessary so that Rod may claim the exemption for 1989 if his contributions complied with federal regulations.

IV

Did the court err in awarding maintenance?

Rod argues that he should not be required to pay maintenance because Phyllis was at fault in the breakup of this marriage.

The standard for awards of maintenance in the State of Montana is established by statute at § 40-4-203, MCA. The statute sets out factors which a court must consider in determining whether and in what amount to award maintenance. Under § 40-4-203(2), MCA, marital misconduct is not a factor to be considered in setting maintenance.

The District Court found that Phyllis’s education and work experience left her, at thirty-nine years of age, with no marketable job skills and little possibility of obtaining secure employment. It found that after the parties’ separation, Rod attended truck driving school and that he had a secure job at the time of trial. It found his salary at the time of trial to be over $25,000 per year. As described above under Issue II, the parties did not have extensive assets. Rod contends that his gross income for 1989 is likely to be only $15,918. However, his 1989 income was not in evidence at trial. The District Court’s findings are supported in the trial record. We conclude that the court did not err in awarding Phyllis $200 per month for three years in maintenance.

V

Did the court exceed its authority by ordering Rod to pay Phyllis’s attorney fees and accountant fee?

The District Court found that “[b]ecause of the parties very limited assets and the completely unfounded claim of Rod in the Tadej’s corporate assets he has caused Phyllis to incur $5,000 in attorney fees and $500.00 in accountants fees which he should be required to pay.”

Section 40-4-110, MCA, provides:

“Costs attorney’s fees. The court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 and 4 of this title and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.”

This Court has held that an award of attorney fees under this statute must be based on necessity, must be reasonable, and must be based on competent evidence. “Reasonableness is shown by means of a hearing allowing for oral testimony, the introduction of exhibits, and the opportunity to cross-examine . . . The award will not be disturbed by this Court if it is supported by substantial evidence.” Wilson v. Bean (Mont. 1981), [_Mont__,] 628 P.2d 287, 289, 38 St.Rep. 751, 752. There is nothing at all in the record of this case to support the amount of either the attorney fees or the accountant fees. We therefore remand the award of these fees for a hearing on attorney and accountant fees. Rod shall not be required to pay Phyllis’s attorney fees for this hearing. See In re Marriage of Bliss (1980), 187 Mont. 331, 336, 609 P.2d 1209, 1213.

Affirmed in part as modified, and remanded in part.

JUSTICES HARRISON, BARZ, HUNT and McDONOUGH concur.


author: JUSTICE SHEEHY

text:
    ABLE, INC., a Montana corp., Plaintiff and Respondent, v. JOSEPH K. KUZARA, Defendant and Appellant.
    No. 89-241.
    Submitted on Briefs Oct. 25, 1989.
    Decided Jan. 29, 1990.
    785 P.2d 1021.
    Joseph K. Kuzara, Roundup, pro se.
    Charles E. Snyder, Billings, for plaintiff and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Joseph K. Kuzara, appearing without counsel, appeals from a judgment entered in the District Court, Fourteenth Judicial District, Musselshell County, holding Kuzara liable to Able, Inc., in the total sum of $3,169.27 on an account stated. We affirm the judgment of the District Court.

The sole issue raised on appeal is whether the District Court applied the correct legal principles in deciding this matter on the basis of an account stated.

Able, Inc., a Montana corporation, operates an insurance agency business in Musselshell County. Prior to December, 1980, Able, Inc. had sold and issued insurance policies covering building liability, fire and extended coverage and glass breakage coverage to one Jerry Ellis, who was the owner of a building located in Roundup, Montana. Kuzara, too, had done business with Able, Inc., having negotiated the purchase of a farm and ranch liability policy through Able, Inc.

In February, 1981, Kuzara purchased the Roundup building from Ellis while the insurance policies were still in effect. The insurance policies were transferred to Kuzara as the named insured and the renewal premiums were billed by Able, Inc. to Kuzara’s account. Able, Inc. renewed the same insurance policies in Kuzara’s name and in effect extended credit to Kuzara for the premiums when Able, Inc. itself paid the insurance companies for the renewal premiums.

The District Court found that the renewals were made by Able, Inc. prior to any receipt of any requests for cancellation by Kuzara; that he made no surrender of the policies nor gave any written notice of policy cancellation until December 12, 1982, when one of the policies was terminated and again on July 20, 1983, when another policy was terminated. Able sent billing statements to Kuzara regularly on a monthly basis from December 28, 1981 until May 23, 1984, the statements indicating the amount of premium due and a finance charge of IV2 % per month or an annual rate of 18% on the unpaid balances. Kuzara received and regularly filed all the statements and correspondence received by the plaintiff without taking any further action. The District Court found that Kuzara knew that Able had continued his policies in effect as was demonstrated by the monthly billing statements which Kuzara had admitted receiving. Nonetheless, Kuzara on demand refused to pay and reimburse Able for the amounts claimed by Able.

An account stated was clearly established in this case. The basic ingredient of an account stated is an agreement between the parties that the items of account and the balance struck are correct, and an express or implied agreement for the payment of the balance. Implied agreement for the payment of the balance may be presumed where there is a course of dealings, an antecedent indebtedness, and retention of a statement of the account for an unreasonable length of time without objection. Johnson v. Tindall (1981), 195 Mont. 165, 635 P.2d 266; Mattson v. Julian (1984), 209 Mont. 48, 678 P.2d 654; Montana Seeds, Inc. v. Holliday (1978), 178 Mont. 119, 582 P.2d 1223. The District Court correctly concluded that an account stated existed between the parties in this case.

On appeal, Kuzara argues that agreements for the loan and repayment of money should be in writing, and that Able was in violation of the Montana Retail Sales Finance Act (§ 31-1-231, MCA) and the Insurance Premium Finance Statutes (§ 33-14-301, MCA). As this Court pointed out in Montana Seeds, Inc. v. Holliday, supra, 582 P.2d at 1226, where the defendant raised the defense of statute of frauds for the first time on appeal, a defense not raised in the pleadings nor otherwise raised before the District Court cannot be maintained on appeal.

Accordingly, the judgment of the District Court is affirmed.

JUSTICES HARRISON, HUNT, BARZ and WEBER concur.