author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BILLY DALE WILLIAMS, Defendant and Appellant.
    No. 95-054.
    Submitted on Briefs August 17, 1995.
    Decided October 25, 1995.
    52 St.Rep. 1085.
    904 P.2d 1019.
    273 Mont. 459.

      For Appellant: J. B. Wheatcroft, Attorney at Law, Miles City.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Brenda Nordlund, Assistant Attorney General, Helena; Coleen Magera, Powder River County Attorney, Broadus.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The defendant, Billy Dale Williams, was charged by complaint in the Justice Court of Powder River County with driving under the influence of alcohol in violation of § 61-8-401, MCA. On June 1,1994, following a nonjury trial, Williams was convicted of the charge against him. He appealed his conviction to the District Court for the Sixteenth Judicial District in Powder River County. However, after his motion to suppress blood alcohol test results was denied, he entered a guilty plea on the condition that he be allowed to appeal the denial of his suppression motion.

We affirm the order of the District Court.

The issue on appeal is:

Did the District Court err when it denied Williams’s motion to suppress his blood alcohol test results?

FACTUAL BACKGROUND

On Saturday, October 16, 1993, at approximately 11 p.m., Billy Dale Williams was involved in a single vehicle accident in Powder River County. Powder River County Undersheriff Brett Tabolt and Deputy Sheriff Dave Lancaster arrived at the scene ten minutes after the accident was reported and discovered Williams’s car in the ditch. Williams was seated in the passenger seat of the vehicle.

In an effort to determine the extent of Williams’s injuries, Tabolt spoke with him at the accident scene. He observed that Williams’s eyes were red and watery and “could smell an odor of an alcoholic beverage on his breath.” During the course of their conversation, and on several other occasions, Tabolt asked Williams to extinguish his cigarette and admonished him not to light another one. Several of these requests were unheeded.

After he spoke with Williams, Tabolt requested assistance from the Montana Highway Patrol. In response to that request, Patrolman Paul Hazelton arrived at the accident scene. Tabolt reported his observations to Hazelton, “including the observation of the odor of an alcoholic beverage.”

By the time Hazelton arrived at the scene of the accident, Williams had already been transported by ambulance to the Miles City Holy Rosary Hospital. Hazelton radioed the Miles City Police Department and requested that an officer be dispatched to inform Williams of the Montana implied consent law and to obtain a blood sample. Hazelton concluded his investigation and left the accident scene at 12:55 a.m.

On Sunday October 17,1993, at approximately 12:50 a.m., Officer Kevin Krausz of the Miles City Police Department arrived at the Holy Rosary Hospital and met with Williams. Krausz identified himself and told Williams that he was acting at the request of Officer Paul Hazelton of the Montana Highway Patrol. During his conversation with Williams, Krausz “did detect alcohol on [Williams’s] breath.” Krausz read the implied consent form to Williams, and Williams consented to a blood alcohol content (BAC) test. Aregistered nurse in the hospital emergency room drew the blood sample.

Hazelton arrived at Holy Rosary Hospital at 1:50 a.m. and interviewed Williams. At that time, Hazelton also “could smell an odor of an alcoholic beverage coming from Mr. Williams’s breath.” Williams admitted that he had consumed three to four beers prior to his accident. Hazelton issued Williams notices to appear for driving under the influence of alcohol and for failure to wear a seatbelt, and signed the request for blood test form.

At 3 a.m., Hazelton went to the Miles City Police Department, where he signed the implied consent law advisory form as the arresting officer and collected Williams’s blood sample from Krausz. Test results indicated that two hours after his accident, Williams’s blood alcohol level was .09 mg./100 ml. blood.

Prior to his trial before the Powder River County Justice Court, Williams filed a motion to suppress the results of his blood alcohol test. In his supporting brief, Williams contended that Hazelton and Krausz had not complied with the implied consent procedures as set forth in § 61-8-402, MCA, and that the BAC sample was, therefore, improperly obtained. Specifically, Williams argued that Krausz had not had jurisdiction over the matter because the accident had not occurred within the city limits of Miles City or within five miles thereof, and that there was not probable cause to malee a warrantless arrest. These two errors, Williams asserted, violated Montana’s implied consent law.

That motion was denied, and the court found Williams guilty as charged on June 1, 1994.

Williams appealed his conviction to the Sixteenth Judicial District Court where all issues raised by the charge against him were considered de novo. Williams renewed his motion to suppress, based on the same two issues of jurisdiction and probable cause. The District Court found that there had been probable cause and authority to arrest Williams and to administer the BAC test pursuant to the implied consent law, and denied the motion. The court accepted Williams’s conditional guilty plea, and stayed imposition of sentence pending Williams’s appeal to this Court.

DISCUSSION

Did the District Court err when it denied Williams’s motion to suppress his blood alcohol test results?

The standard of review for a district court’s denial of a motion to suppress is whether the court’s findings of fact are clearly erroneous, and whether those findings were correctly applied as a matter of law. State v. Flack (1993), 260 Mont. 181, 188, 860 P.2d 89, 94. In this case, the parties submitted stipulated facts to the District Court. Therefore, our review is plenary and we must determine only whether the court’s conclusions of law were correct as a matter of law. Flack, 860 P.2d at 92.

Williams contends that the District Court’s denial of his motion to suppress was erroneous for three reasons. First, he claims that the BAC results should have been suppressed because he was never arrested by Krausz, as required by Montana’s implied consent law, § 61-8-402, MCA. Second, Williams contends that Krausz lacked probable cause to make a warrantless arrest. Finally, Williams argues that Krausz did not have jurisdiction to arrest him.

FAILURE TO ARREST

In his motion to suppress before the Powder River County Justice Court, Williams contended that Officer Krausz of the Miles City Police Department did not have jurisdiction to obtain a BAC test because his accident had not occurred within the city limits or within five miles thereof, as required by § 7-32-4301, MCA. Williams also contended that there was not probable cause to make a warrantless arrest. Williams filed the identical motion and supporting brief in District Court.

On appeal, Williams raises a third argument for suppression of the blood test. Williams now asserts that the BAC test should have been suppressed because he was never placed under arrest by Krausz, as required by the implied consent law. He asserts that the mere act of reading the implied consent advisory form did not constitute an arrest pursuant to Montana’s warrantless arrest statutes contained in Title 46, Chapter 6, Part 3, MCA, and therefore, that the implied consent law was inapplicable.

We decline to hear Williams’s failure to arrest argument because he did not raise it at the district court level. Although the State referred to the matter of Williams’s arrest in its brief to the District Court, Williams had not placed his arrest at issue, and the District Court did not address that question when it denied Williams’s motion. Williams’s failure to include this issue as a basis for his motion to suppress before the District Court bars him from raising it on appeal. State v. Redfern (1987), 228 Mont. 311, 313, 741 P.2d 1339, 1340-41. See also § 46-20-104(2), MCA.

LACK OF PROBABLE CAUSE

Williams claims that Krausz did not have probable cause to arrest him for purposes of the implied consent law, § 61-8-402(1), MCA. Montana’s implied consent law provides, in pertinent part:

A person who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent... to a test or tests of the person’s blood, breath, or urine for the purpose of determining any measured amount or detected presence of alcohol or drugs in the person’s body if arrested by a peace officer for driving or for being in actual physical control of a vehicle while under the influence of alcohol, drugs, or a combination of the two.

Section 61-8-402(1), MCA (emphasis added).

The implied consent law requires an arrest by a peace officer before its provisions become operative. Section 46-6-311(1), MCA, provides:

A peace officer may arrest a person when a warrant has not been issued if the officer has probable cause to believe that the person is committing an offense or that the person has committed an offense and existing circumstances require immediate arrest.
We have long held that the probable cause requirement is satisfied: [I]f at the time of arrest the facts and circumstances within the officer’s personal knowledge, or upon information imparted to him by a reliable source, are sufficient to warrant a reasonable person to believe that the suspect has committed an offense.

Santee v. State (1994), 267 Mont. 304, 307, 883 P.d 829, 831 (citing Jess v. State (1992), 255 Mont. 254, 261, 841 P.2d 1137, 1141).

Williams contends that the chain of sources, from Officers Tabolt and Lancaster to Officer Hazelton to the Miles City dispatch office to Officer Krausz, was too indirect to establish the requisite probable cause. Based on our prior decisions, we disagree. It is well established that an arresting officer may rely on information conveyed by another officer to determine whether there is probable cause to arrest. Boland v. State (1990), 242 Mont. 520, 524, 792 P.2d 1, 3. In fact, it is our policy that courts should evaluate probable cause “on the basis of the collective information of the police rather than that of only the officer who performs the act of arresting.” Boland, 792 P.2d at 3.

In this case, the observations of Tabolt and Hazelton which had been communicated to Krausz, in combination with Krausz’s own observations, established sufficient probable cause to arrest Williams. Tabolt personally observed Williams, who was seated in a wrecked vehicle in a ditch by the side of the highway. Tabolt further observed that Williams had red watery eyes, and that his breath had the odor of an alcoholic beverage. Tabolt reported that he repeatedly had to admonish Williams not to light a cigarette. Tabolt reported his observations to Hazelton, who in turn conveyed them to Krausz via the Miles City dispatcher. Prior to arresting Williams, Krausz personally confirmed that Williams had been drinking when he “[detected] alcohol on Mr. Williams’s breath.”

We conclude that Krausz had probable cause to arrest Williams because he obtained information that Williams had been drinking through a chain of reliable sources, and because he personally observed the odor of an alcoholic beverage from Williams’s breath during his conversation with Williams at the hospital. We hold that Krausz had sufficient evidence to warrant a reasonable person to believe that Williams had been driving while under the influence of alcohol.

LACK OF JURISDICTION

Williams asserts that Krausz did not have jurisdiction to arrest him because his accident did not occur within the Miles City city limits or within five miles thereof, as required by § 7-32-4301, MCA. However, we hold that § 7-32-4301, MCA, is not determinative of Krausz’s authority because he was acting at the request of, and based on the authority of Paul Hazelton of the Montana Highway Patrol. Section 44-11-101, MCA, provides:

A peace officer or any law enforcement entity of any county or municipality or a state government law enforcement entity may request the assistance of a peace officer from another law enforcement entity within the state of Montana. A peace officer, while in the jurisdiction of the requesting officer or entity and while on such request for assistance, has the same powers, duties, rights, privileges, and immunities as a peace officer of the requesting entity and is under the authority of the requesting officer or entity.

(Emphasis added.)

Hazelton’s call to the Miles City Police dispatcher was a request for assistance pursuant § 44-11-101, MCA. Krausz responded to the request, identified himself to Williams, and explained that he was acting on behalf of the Montana Highway Patrol. Since Hazelton had jurisdiction over Williams’s accident pursuant to § 44-1-1003, MCA, he had the statutory authority to request Krausz’s assistance. Therefore, we conclude that Krausz had jurisdiction to arrest Williams pursuant to § 44-11-101, MCA.

We affirm the District Court and hold that the court’s denial of Williams’s motion to suppress was correct as a matter of law.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, LEAPHART and GRAY concur.


source: Caselaw Access Project

license: Public Domain

text:
    IN RE THE MARRIAGE OF DAVID L. SCHNELL, Petitioner and Appellant, and TWYLA L. SCHNELL, Respondent and Respondent.
    No. 95-047.
    Submitted on Briefs July 27, 1995.
    Decided October 24, 1995.
    52 St.Rep. 1059.
    905 P.2d 144.
    273 Mont. 466.

      For Appellant: Lynda S. Weaver, Morrow, Sedivy & Bennett, Bozeman.
    For Respondent: Marcelle C. Quist and Kendra K. Anderson, Quist, Bowen & Anderson, Bozeman.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The appellant, David L. Schnell, filed a petition in the District Court for the Eighteenth Judicial District in Gallatin County for dissolution of his marriage to the respondent, Twyla L. Schnell. Following a hearing, the District Court entered its decree in which it provided for joint custody of the couple’s only child, child support, and division of the marital estate. The District Court also ordered that David pay Twyla’s attorney fees. David appeals from the District Court’s decree. We affirm in part and reverse in part.

The issues on appeal are:

1. Did the District Court err when it failed to award child support based on the Child Support Guidelines, or to specify why it declined to do so?

2. Did the District Court err when it ordered that the tax deduction for the couple’s daughter be shared without regard to her place of residence or the financial implications to the parties?

3. Did the District Court err when it based its division of the couple’s property on an oral stipulation?

4. Did the District Court err when it awarded Twyla attorney fees?

STATEMENT OF FACTS

David and Twyla were married on June 25, 1978, in Columbia, Missouri. During the course of their marriage, they had one child, Deanna. Prior to the marriage, David had purchased land in Missouri upon which he and Twyla built a home during the marriage. Twyla and David also purchased a vacant lot in Missouri during the marriage.

David is employed as the maintenance director at the Mount Ellis Academy boarding school (MEA) in Bozeman where he earns $2503 per month. MEA allows a substantial reduction in Deanna’s tuition, and provides health insurance, so long as David is entitled to a tax exemption for Deanna.

Twyla is employed as a full-time registered nurse and earns $2462.40 per month.

Pursuant to a stipulation made in open court at a hearing to consider temporary relief, the court awarded the Missouri home to Twyla, but ordered that she pay one-half its appraised value ($25,000) to David. The court awarded David and Twyla joint custody of Deanna, but appears to have assumed she would attend school in Montana while either living with her father or in the dormitory, and that she would spend summers with her mother, who remained in Missouri.

The tax deduction attributable to Deanna’s dependency was awarded to Twyla in odd-numbered years, and to David in even-numbered years. The District Court ordered Twyla to pay as child support, all of Deanna’s current school expenses, the expenses related to the care of Deanna’s horse, and all of Deanna’s personal expenses, including clothing, spending money, transportation, and piano lessons, until Deanna graduated from high school or reached the age of 18, whichever occurred later.

The District Court also awarded Twyla attorney fees.

ISSUE 1

Did the District Court err when it failed to award child support based on the Child Support Guidelines, or to specify why it declined to do so?

We review a district court’s child support award to determine if, in making the award, the court abused its discretion. In re Marriage of Noel (1994), 265 Mont. 249, 252, 875 P.2d 358, 359 (citing In re Marriage of Weed (1992), 254 Mont. 162, 165, 836 P.2d 591, 593). The district court must employ its discretion realistically and must take into account the parties’ actual situation. Marriage of Noel, 875 P.2d at 359 (citing In re Marriage of Gebhardt (1989), 240 Mont. 165, 172, 783 P.2d 400, 404).

David contends that the District Court erred because its award was not based on the Uniform Child Support Guidelines. Section 40-4-204(3)(a), MCA (1993), directs district courts to

determine the child support obligation by applying the standards in this section and the uniform child support guidelines ... unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust to the child or to any of the parties or is inappropriate in that particular case.

Section 40-4-204(3)(b), MCA (1993), provides that:

If the court finds that the guideline amount is unjust or inappropriate in a particular case, it shall state its reasons for finding that the application of the standards and guidelines is unjust to the child or a party or is inappropriate in that particular case.

An award based on the Guidelines bears a presumption that it is reasonable and adequate. However, the Guidelines require that courts consider the merits and circumstances of each case. Moreover, the Guidelines provide that either party may rebut the presumption that they should be followed by presenting evidence that an award based on the Guidelines would not meet the child’s needs. Rule 46.30.1507(1), ARM. Additionally, before a district court may deviate from the Guidelines, it must make specific written findings which demonstrate its reason for deviation from the Guidelines. Rule 46.30.1507(3), ARM.

David contends that the District Court’s decree contravenes two of our recent decisions: In re Marriage of Brandon (1995), [271 Mont. 149], 894 P.2d 951, and In re Marriage of Griffin (1993), 260 Mont. 124, 860 P.2d 78. In both cases, we held that district courts must apply the Guidelines when they award child support. As we stated in those cases, district courts must provide clear and convincing reasons pursuant to § 40-4-204(3)(a), MCA, to justify a deviation from the Guidelines. Marriage of Brandon (1995), 894 P.2d at 953; Marriage of Griffin, 860 P.2d at 88.

David also contends that the District Court’s order gives Twyla unfettered discretion to determine how much child support she will pay. David relies on In re Adoption of K.L.J.K. (1986), 224 Mont. 418, 421, 730 P.2d 1135, 1137, a case in which we held that “in-kind” child support payments did not satisfy that parent’s obligation to his child. See also In re Marriage of Burns (1982), 198 Mont. 365, 646 P.2d 530; In re Adoption of S.L.R. (1982), 196 Mont. 411, 640 P.2d 886. David asserts that the District Court’s child support order sanctions the type of “in-kind” payments we have previously prohibited.

Twyla contends that the Guidelines are merely advisory in nature and not binding on district courts. Twyla relies on In re Marriage of Ensign (1987), 227 Mont. 357, 361, 739 P.2d 479, 482, in support of this argument. In that case, we held that the child support formula set out in In re Marriage of Carlson (1984), 214 Mont. 209, 693 P.2d 496, does not bind district courts, but instead, provides suggestions for the district courts to follow. The Guidelines were established in 1987 and made binding upon courts in 1989 when the Legislature amended § 40-4-204, MCA. Therefore, to the extent Marriage of Carlson established a procedure that differs from the current regulatory framework, and to the extent we may have suggested in Marriage of Ensign that the Guidelines are suggestive and not binding, those decisions no longer apply.

We conclude that the District Court abused its discretion when it determined child support because it did not consider the Guidelines. Nowhere in its order did the court cite the Guidelines or § 40-4-204, MCA. Nowhere in its order did the District Court state its reasons for not applying the Guidelines, as § 40-4-204, MCA, and Marriage of Brandon require. Nowhere in its order did the District Court state why a deviation from the Guidelines served Deanna’s best interests. Twyla’s assertion that the Guidelines are suggestive and not binding ignores the clear statutory and regulatory requirements of § 40-4-204(3), MCA, and Rule 46.30.1507(3), ARM. Moreover, there is no way for us to actually evaluate the amount of the District Court’s child support award and compare it to the dollar amount that the Guidelines require. We conclude, therefore, that the District Court abused its discretion when it awarded child support in this case.

ISSUE 2

Did the District Court err when it ordered that the tax deduction for the couple’s daughter be shared without regard to her place of residence or the financial implications to the parties?

We review a district court’s award of a tax exemption to determine whether the court abused its discretion. In re Marriage of Milesnick (1988), 235 Mont. 88, 91, 765 P.2d 751, 753.

David contends that he was entitled to the tax exemption in this case because, as an employee of MEA, certain benefits, which include Deanna’s health insurance and a reduction in tuition, depend on his right to claim the exemption. He claims that the reduction in tuition alone is worth $1509.25, but that Twyla would realize a tax savings of only $367.50 by having the tax exemption. In other words, David claims that the benefits Deanna would receive if he were awarded the tax exemption far outweigh the benefits Twyla would receive from the current alternating award.

Twyla claims that she has no objection to David’s receipt of the tax exemption as long as David is employed by, and Deanna remains in school at MEA.

In In re Marriage of Simms (1994), 264 Mont. 317, 326, 871 P.2d 899, 904, we held that district courts should enforce parties’ in-court stipulations and agreements to the extent possible and consistent with the court’s primary duty to apply the appropriate statutory criteria.

Based on the reasoning set forth in that decision, and the parties’ apparent agreement regarding the best use of the tax exemption for Deanna, we conclude that the District Court abused its discretion when it alternated the exemption between the parties without regard to how it could best benefit them and their daughter. That District Court tax exemption award is reversed. We order that the exemption can be claimed by David, so long as he is employed by MEA and Deanna attends school at MEA. Should either condition not exist, the exemption should be shared by the couple on an alternating annual basis.

ISSUE 3

Did the District Court err when it based its division of the couple’s property on an oral stipulation?

We review a district court’s division of a marital estate to determine whether the court abused its discretion. In re Marriage of Maedje (1994), 263 Mont. 262, 265-66, 868 P.2d 580, 583.

David purchased land in Missouri prior to the marriage. During their marriage, he and Twyla built a home on this land. The District Court did not, however, give David credit for the value of this premarital property when the court divided Twyla and David’s marital estate.

Twyla contends that the court’s disposition of the couple’s Missouri home was justified based on an oral stipulation entered into in open court while both parties were represented by counsel. In that stipulation, Twyla’s counsel stated:

Specifically, as to the home in Missouri, Mrs. Schnell will purchase that home for one-half — from Mr. Schnell for one-half the appraised value. The parties will immediately have the property appraised. They will both equally pay one-half of the cost of that appraisal. Then she will, within 30 days of the receipt of the appraisal, pay Mr. Schnell one-half of that value.

David did not object to the stipulation at trial.

We recently affirmed a district court’s enforcement of an in-court stipulation. See In re Marriage of Jakkola (1994), 267 Mont. 450, 453, 884 P.2d 783, 785. In that case, we held that: “To the extent that the court is able to apply the statutory [§ 40-4-202, MCA] criteria while, at the same time, holding the parties to their on-record stipulations and agreements, it should do so.” Marriage of Jakkola, 884 P.2d at 785. David contends that pursuant to In re Marriage of Hayes (1994), 264 Mont. 350, 871 P.2d 913, the District Court abused its discretion when it enforced the stipulation. In that case, we concluded that district courts may not enforce an in-court stipulation unless the parties reduce it to writing.

We need not reach this issue, however. The stipulation was made in open court on June 16, 1992. The District Court filed its original order concerning the stipulation on July 10, 1992. David did not challenge the stipulation at trial, and now challenges the stipulation for the first time on appeal. We have previously held that parties cannot raise issues for the first time on appeal. Morse v. Cremer (1982), 200 Mont. 71, 81, 647 P.2d 358, 363-64. Therefore, based on the stipulation, we affirm the District Court’s division of Twyla and David’s marital estate.

ISSUE 4

Did the District Court err when it awarded Twyla attorney fees?

We review a district court’s award of attorney fees to determine whether the court abused its discretion. In re Marriage of Barnard (1994), 264 Mont. 103, 109, 870 P.2d 91, 95 (citing In re Marriage of Burris (1993), 258 Mont. 265, 272, 852 P.2d 616, 620).

Pursuant to § 40-4-110, MCA, and based on our decision in In re Marriage of Rager (1994), 263 Mont. 361, 868 P.2d 625, David contends that district courts must consider both parties’ financial resources prior to awarding attorney fees.

David asserts that because he and Twyla earn approximately the same amount of money, and because Twyla received substantial assets from the property settlement, Twyla has failed to prove that she was unable to pay her attorney fees or that David was in a better position to pay her attorney fees.

Twyla responds that David has repeatedly frustrated a timely disposition of this matter and cites the District Court’s findings and conclusions, in which the court referred to the several times it held David in contempt during the dissolution proceedings. Twyla also relies on In re Marriage of Syljuberget (1988), 234 Mont. 178, 763 P.2d 323, a case in which we affirmed the district court’s award of attorney fees to a wife when a majority of her attorney fees were due solely to the husband’s lack of cooperation.

The evidence clearly establishes that David has been uncooperative during the dissolution proceedings and willfully frustrated an expeditious resolution of the parties’ differences. The financial burden of his behavior should not be borne by his former spouse. Therefore, we conclude that the District Court did not abuse its discretion when it awarded Twyla attorney fees.

Based on the foregoing discussion, we reverse the District Court in part, and affirm the District Court in part, and remand to the District Court for further proceedings consistent with this opinion.

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


author: JUSTICE NELSON

text:
    IN THE MATTER OF THE SEIZURE OF $23,691.00 IN UNITED STATES CURRENCY
    No. 94-588.
    Submitted on Briefs August 3, 1995.
    Decided October 24, 1995.
    52 St.Rep. 1063.
    905 P.2d 148.
    273 Mont. 474.

      For Appellant: Karl P. Seel, Bozeman.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Cregg Coughlin, Assistant Attorney General, Helena; Mike Salvagni, Gallatin County Attorney, Marty Lambert, Deputy Gallatin County Attorney, Bozeman; Marcelle Quist, Bozeman.
   JUSTICE NELSON

delivered the Opinion of the Court.

Petitioner Robert Burns of the West Yellowstone Police Department initiated this suit in the District Court of the Eighteenth Judicial District, Gallatin County, for the forfeiture of $23,691 seized from a 1991 Ford Explorer on November 15,1991. The District Court entered judgment in favor of the Petitioner for $1,980, and ordered Claimant Stacy Vanderburg (Vanderburg) to forfeit $22,980 to the Drug Forfeiture Fund of the West Yellowstone Police Department. The District Court entered judgment in favor of Claimant Donna Nelson (Nelson), allowing her to keep $711. Vanderburg appeals the judgment ordering the forfeiture. We affirm.

ISSUES

We address the following issues on appeal:

1. Did the District Court err in admitting Nelson’s videotaped deposition?

2. Did the District Court err in failing to make particular findings of fact?

3. Did the District Court err by failing to base its findings of fact and conclusions of law on substantial credible evidence?

BACKGROUND

On the night of November 10, 1992, Vanderburg, accompanied by Nelson, rented room 112 at the Brandin’ Iron Motel in West Yellowstone, Montana. On the morning of November 11,1991, a maid at the motel notified the West Yellowstone Police Department that she found a black suitcase containing a pound of marijuana in room 112. On the same morning, after discovering that they had left the suitcase in the room, Vanderburg and Nelson returned to the motel and asked the manager for the suitcase. The manager informed Nelson that the police had possession of the suitcase. Vanderburg and Nelson drove off.

The West Yellowstone Police stopped Vanderburg and Nelson about six miles north of West Yellowstone and Vanderburg gave them permission to search the vehicle. However, before searching the vehicle, the police obtained a search warrant. The police found $21,000 of United States currency, a loaded handgun, and a bag of rubberbands in Vanderburg’s briefcase. In Nelson’s purse they found $1,000 and $980 in bundles of United States Currency. In Nelson’s wallet they found $711 and Zig Zag cigarette papers. They also found a digital electronic scale and the receipt to room 112 at the Brandin’ Iron Motel in the back of the vehicle.

The West Yellowstone Police arrested Vanderburg and Nelson on charges of criminal possession of dangerous drugs with intent to sell. While Vanderburg and Nelson were incarcerated, Officer Burns overheard Vanderburg telling Nelson that they would be in trouble when the police found the scale and that the police would keep the money they found in the car because a financial background check would show that neither Vanderburg nor Nelson would normally have such a large amount of money.

After a jury trial, Nelson was convicted of possession of dangerous drugs with intent to sell. Charges against Vanderburg were dismissed after a mistrial and in his case, double jeopardy prevented a new trial.

The West Yellowstone Police Department then filed a petition for forfeiture of the $23,691 seized from Vanderburg’s vehicle pursuant to § 44-12-102(1)(g), MCA, which subjects to forfeiture proceeds traceable to an exchange of dangerous drugs or proceeds used or intended to be used to facilitate a violation of Title 45, chapter 9, MCA. Vanderburg claims $21,000 of the money taken from his briefcase which was seized from the vehicle. Nelson claims $711 taken from her wallet which was seized from the vehicle. Neither Vanderburg nor Nelson claim the $1,980 taken from Nelson’s cosmetic bag.

Vanderburg’s and Nelson’s statements regarding the money conflicted. Nelson claimed that Vanderburg went to West Yellowstone to sell marijuana. She further claimed that Vanderburg transported the marijuana in five-gallon plastic buckets and that she saw two men leaving room 112 carrying the five-gallon buckets. Nelson also stated that after they left the motel and before they were pulled over, Vanderburg took money out of his briefcase and gave it to her. In contrast, Vanderburg claimed that Nelson went to West Yellowstone to sell drugs. He also claimed that he borrowed the $21,000 in cash from his mother, Judy Cornell, and from a family friend, Eleanor Clark, for his school tuition. He took the cash with him for safe keeping and took the handgun to “fend off some robbers or something.” He claimed that he did not know of the scale or marijuana before the trial.

At Nelson’s deposition, her attorney instructed her not to answer a number of questions. Although the parties did not request a transcript, the State’s brief included excerpts from Vanderburg’s attorney’s line of questions:

Were you aware that there was a warrant for your arrest for contempt of court?;
Have you been found in contempt of court for failing to successfully complete counseling for DUI? ... My question was whether you were aware of it?;
Were you, or had you been arrested and found guilty of possession of marijuana in the State of Washington?;
On previous occasion[sic] ... Did you sell marijuana?;
Did you, were you in fact known to be a dealer of drugs in Spokane, Washington?;
Are you aware of the fact that you have been accused in other court proceedings of being a drug dealer?;
Isn’t it true ... that your neighbors have filed affidavits in which they were, say that you sold drugs out of your home?

Nelson’s counsel instructed her not to answer these questions and to assert her Fifth Amendment right against self-incrimination. The State’s attorney objected to the line of questions as violating Rules 608 and 609, M.R.Evid. Vanderburg then moved to exclude the deposition entirely. At the bench trial, the District Court allowed Nelson’s videotaped deposition over Vanderburg’s objections.

The District Court found Vanderburg’s, Judy Cornell’s, and Eleanor Clark’s testimony not credible. Because the West Yellowstone Police introduced no evidence that the $711 found in Nelson’s wallet was used to facilitate the sale of marijuana, the District Court found that the money was not proceeds of a drug transaction and ordered it released to Nelson pursuant to § 44-12-205(1), MCA.

The District Court concluded that Vanderburg failed to rebut the presumption of forfeiture by a preponderance of the evidence and ordered judgment in favor of the West Yellowstone Police Department in the sum of $21,000, which does not include the $1,980 that neither Vanderburg nor Nelson claimed. The District Court entered judgment in favor of Nelson for the $711. Vanderburg appeals the judgment granting the forfeiture of $22,980 to the West Yellowstone Police Department and releasing $711 to Nelson.

DISCUSSION

1. Did the District Court err in admitting Nelson’s videotaped deposition?

The standard of review for evidentiary rulings is whether the district court abused its discretion. State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380 (citing State v. Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054). The District Court has broad discretion to determine if evidence is admissible. Accordingly, absent an abuse of discretion, we will not overturn the district court’s determination. Passama, 863 P.2d at 380.

Citing to no other authority than evidentiary privileges which Vanderburg admits do not apply, Vanderburg claims that the District Court erred when it admitted Nelson’s videotaped deposition. Vanderburg supports his claim by stating that Nelson waived her Fifth Amendment privilege against self-incrimination, could not assert her privilege against self-incrimination after being convicted of possession of dangerous drugs, and could not assert her privilege against self-incrimination in a civil proceeding. Vanderburg fails to explain why the District Court should have excluded Nelson’s entire deposition when she asserted her Fifth Amendment right against self-incrimination only as to certain questions asked and he cites no authority for that proposition.

The State argues that not only did Nelson correctly assert her Fifth Amendment privilege against self-incrimination but also that the District Court did not abuse its discretion in denying Vanderburg’s motion to exclude Nelson’s testimony. The State asserts that had Vanderburg wanted Nelson’s testimony, he could have moved to compel Nelson to answer the disputed questions rather than move to exclude the entire deposition.

The State correctly argues that the Fifth Amendment’s protection “covers not only criminal proceedings but also other proceedings where compelled testimony could lead to future prosecution.” Matter of C.L.R. (1984), 211 Mont. 381, 386, 685 P.2d 926, 929 (citing Lefkowitz v. Turley (1973), 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274). Thus, Nelson’s conviction in a prior criminal proceeding and the fact that the instant case is a civil proceeding have no bearing on Nelson’s ability to assert her Fifth amendment right against self-incrimination. Nelson had the right not to answer questions where the answers could lead to future prosecution. As the State suggested, had Vanderburg wanted the answers to the questions, he could have moved to compel the answers. Instead he moved to strike the entire deposition testimony. Vanderburg did not support his unorthodox motion with any authority demonstrating why the District Court should have excluded the testimony or how the District Court erred in not excluding the testimony.

In addition, the State argues that Vanderburg attempted to impeach Nelson’s credibility with evidence of prior convictions. Evidence of the character and conduct of a witness is generally inadmissible. Rule 404(a), M.R.Evid. However, Rule 608, M.R.Evid., permits character evidence under specific circumstances, for example, when the party puts the witness’s character for truthfulness into issue and then only if the character evidence goes to the witness’s veracity. State v. Courville (1989), 236 Mont. 253, 256, 769 P.2d 44, 46. “The exception is narrowly drawn in recognition of the opportunities for abuse when evidence of specific instances of conduct is offered. Thus the rule admits such evidence only on cross-examination and only if probative as to a witness’s truthfulness or untruthfulness ...” State v. White (1983), 202 Mont. 491, 496, 658 P.2d 1111, 1113 (citing 10 Moore’s Federal Practice ¶ 608.21 (3d ed. 1986)). Aparty may not use extrinsic evidence of specific instances of misconduct for the purpose of attacking the witness’s credibility. Courville, 769 P.2d at 46. “Rule 608(b), M.R.Evid., provides that specific instances of conduct by a witness, for the purpose of attacking or supporting his credibility, may not be proved by extrinsic evidence.” State v. Gollehon (1993), 262 Mont. 1, 15, 864 P.2d 249, 258 (citing State v. Norris (1984), 212 Mont. 427, 689 P.2d 243).

Moreover, Rule 609, M.R.Evid., specifically prohibits evidence of a witness’s prior convictions. “This Court has been adamant in prior rulings that Rule 609 be strictly enforced.” Gollehon, 864 P.2d at 259. “Rule 609 specifically prohibits admission of evidence that a witness has been convicted of a crime for purposes of attacking the credibility of the witness.” Courville, 769 P.2d at 46.

In Gollehon we held that the district court did not abuse its discretion by refusing to allow the defendant to inquire into evidence of prior crimes committed by one of the State’s eyewitnesses. Gollehon, 864 P.2d at 259. In White, we held that the district court erred “in permitting the interrogation of a witness, not a party to the suit, as to past instances of misconduct for the purpose of impeaching the witness.” White, 658 P.2d at 1113.

In the instant case, neither Nelson nor the State put Nelson’s character for truthfulness into issue. Yet Vanderburg sought to elicit answers to questions regarding specific instances of misconduct and evidence of prior misconduct. For example, at the deposition, Vanderburg’s attorney asked Nelson:

Were you, or had you been arrested and found guilty of possession of marijuana in the State of Washington?;
On previous occasion [sic] ... Did you sell marijuana?;
Did you, were you in fact known to be a dealer of drugs in Spokane, Washington?;
Are you aware of the fact that you have been accused in other court proceedings of being a drug dealer?;
Isn’t it true ... that your neighbors have filed affidavits in which they were, say that you sold drugs out of your home?

Vanderburg clearly sought the answer to these questions to impeach Nelson’s credibility. The questions were improper and Nelson did not have to answer them. We hold the District Court did not abuse its discretion in admitting into evidence Nelson’s deposition testimony that did not have answers to the above referred to improper line of questions, which Nelson had the right to refuse to answer.

2. Did the District Court err in failing to make particular findings of fact?

Vanderburg argues that the District Court failed to make at least eleven crucial findings of fact. The State counters each of the “crucial findings” and contends that the District Court need only make those findings upon which the District Court’s conclusion rests.

Vanderburg presents eleven additional findings of fact that he claims the District Court should have made. For example, Vanderburg argues that the District Court should have found that Nelson returned to the motel room and asked for her suitcase. Vanderburg argues that this is a crucial fact because it links the marijuana to Nelson. The State, on the other hand, correctly notes that although the West Yellowstone Police Officer stated in his affidavit that Nelson asked for her suitcase, he testified that the clerk at the motel could not remember if Nelson asked for her suitcase or for a suitcase. Thus the State argues that the officer could not be sure of what Nelson said to the clerk and that the critical issue was where the money came from and not who owned the suitcase of marijuana.

Vanderburg also argues that the District Court should have found that the $21,000 seized in Vanderburg’s car was consistent with Vanderburg’s expenses for a year at school. The State counters Vanderburg’s arguments stating that Vanderburg was not enrolled in school at the time he was arrested and further that Vanderburg claimed that he intended to use the seized money for all of his school expenses only after the State introduced evidence that Vanderburg was financing his education with school loans.

Vanderburg’s last asserted “crucial” finding of fact was that the District Court should have found that Vanderburg could not have physically reached his briefcase while driving his car. The State notes the evidence established that after Vanderburg left the Brandin’ Iron Motel and before he was pulled over, he had time to stop his car, take money out of his briefcase, and give the money to Nelson.

Although Vanderburg argues that the District Court should have addressed these pieces of evidence in its findings, the District Court need not address all of the evidence presented. We have held that a district court need not specifically address each piece of evidence. Tindall v. Konitz Contracting, Inc. (1989), 240 Mont. 345, 351, 783 P.2d 1376, 1380. In fact, the district court need only set forth adequate findings and conclusions so that the reviewing court does not have to speculate as to the reasoning for the district court’s decision. Tindall, 783 P.2d at 1380. Thus the essential and determining factors upon which the court’s conclusions rest are sufficient. Moseman v. Moseman (1992), 253 Mont. 28, 31, 830 P.2d 1304, 1306.

The District Court set forth twenty findings of fact and five conclusions of law. Without any of Vanderburg’s “crucial” findings of fact, the District Court provided ample reasoning for its decision. We therefore hold that the District Court properly set forth the essential and determining facts upon which its conclusions rested.

3. Did the District Court err by failing to base its findings of fact and conclusions of law on substantial credible evidence?

Vanderburg alleges that six of the District Court’s twenty findings of fact were clearly erroneous and thus not based on substantial credible evidence and that its conclusions were erroneous as a matter of law. In contrast, the State counters that Vanderburg’s claims are baseless because the findings of fact were indeed based on substantial credible evidence and its conclusions were correct as a matter of law.

Our standard in reviewing a district court’s findings of fact is whether the findings are clearly erroneous. Rule 52(a), M.R.Civ.P.; Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 322, 820 P.2d 1285, 1287. In DeSaye, we adopted a three-part test to determine if a finding is clearly erroneous. DeSaye, 820 P.2d at 1287. The first part of the clearly erroneous standard is whether substantial evidence supports the finding. DeSaye, 820 P.2d at 1287. If that part of the test is met, we need go no further. We review a district court’s conclusions of law to determine whether or not the district court correctly interpreted the law. Magone v. Froehlich (1995), 270 Mont. 381, 892 P.2d 540, 543 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603).

Vanderburg first challenges the District Court’s conclusion that he failed to overcome the presumption of forfeiture by a preponderance of the evidence. Vanderburg alleges that preponderance of the evidence is not the correct standard and regardless of the correct standard, that he overcame the presumption of forfeiture.

Section 44-12-203, MCA, establishes the presumption of forfeiture. It states in part: “(1) There is a rebuttable presumption of forfeiture as to all property listed in 44-12-102 ...” The property listed in § 44-12-102, MCA, includes money used or intended for use in delivering any controlled substance in violation of Title 45, chapter 9, MCA. A claimant may rebut the presumption of forfeiture by proving that the property was not used for the purpose charged. See § 44-12-204(1), MCA. Rule 301(b)(2), M.R.Evid., states:

[A]ll presumptions, other than conclusive presumptions, are disputable presumptions and may be controverted. A disputable presumption may be overcome by a preponderance of evidence contrary to the presumption. Unless the presumption is overcome, the trier of fact must find the assumed fact in accordance with the presumption.

Additionally, we have held that a presumption remains until rebutted by a preponderance of contrary evidence. The presumption does not disappear unless the party opposing the presumption produces sufficient evidence to preponderate against it. Matter of 1988 Chevrolet Van (1991), 251 Mont. 180, 183, 823 P.2d 858, 860. In the instant case, the District Court correctly applied the preponderance of the evidence standard in determining if Vanderburg rebutted the presumption against forfeiture and therefore correctly interpreted the law.

In turn, Vanderburg asserts that Magone v. Aul (1994), 269 Mont. 281, 887 P.2d 1235, controls the instant case. He argues that regardless of the standard used by the District Court, it incorrectly concluded that Vanderburg had not overcome the presumption of forfeiture. Magone is clearly distinguishable from the instant case in part because it involved a motion for summary judgment. In Magone, the police officers initiated the forfeiture proceedings after the claimant had purchased drugs from an undercover police informant. Magone, 887 P.2d at 1236. The party that moved for summary judgment provided sworn affidavits rebutting the presumption of forfeiture and the non-moving party failed to set forth specific facts to create a genuine issue of material fact. Magone, 887 P.2d at 1237-38. Our decision hinged on uncontroverted affidavits in a motion for summary judgment and we held that sworn affidavits stating that the seized money came from an anniversary gift that the parents had given to the claimant and her husband constituted sufficient evidence to rebut the presumption of forfeiture. Magone, 887 P.2d at 1237-38.

In contrast, the instant case involves varying testimony at a bench trial. Vanderburg offered questionable testimony that the seized money belonged to Judy Cornell and was not proceeds from the sale of drugs. On the other hand, the State provided strong testimony and circumstantial evidence including a pound of marijuana, a scale, a loaded handgun, and a large amount of cash, all linking the money to the sale of marijuana. The District Court found substantial credible evidence and correctly interpreted the law to conclude that Vanderburg failed to rebut the presumption of forfeiture.

Vanderburg next contends that the District Court’s finding that Vanderburg’s and Judy Cornell’s testimony were not credible was not based on substantial credible evidence. “This Court will not substitute its judgment for that of the lower court regarding the credibility of the witnesses and the weight of their testimony.” Matter of BTB (1992), 254 Mont. 449, 454, 840 P.2d 558, 560-61 (citing Smith-Carter v. Amoco Oil Co. (1991), 248 Mont. 505, 510, 813 P.2d 405, 408). Accordingly, we have consistently held that it is the province of the trier of fact to determine the credibility of witnesses. State v. Black (1995), 270 Mont. 329, 891 P.2d 1162, 1167; State v. Flack (1993), 260 Mont. 181, 189, 860 P.2d 89, 94. In Flack, we held that:

A trial court acting as a finder of fact is in the best position to observe the witnesses, including their demeanor and credibility. The weight of the evidence and the credibility of the witnesses are exclusively the province of the trier of fact and, in the event of conflicting evidence, it is within the province of the trier of fact to determine which will prevail.

Flack, 860 P.2d at 94.

The District Court’s determination of the credibility and the weight to give to the testimony of Vanderburg, Judy Cornell, and Nelson was exclusively within its province as the trier of fact. Similarly, the District Court’s weighing of the evidence, including the discrepancies in testimony was within its province as the trier of fact. See Black, 891 P.2d at 1167. The substantial evidence available to the District Court supports its finding that Judy Cornell’s and Eleanor Clark’s testimony was not credible.

We hold that the District Court correctly interpreted the law in applying the preponderance of the evidence standard and in concluding that Vanderburg failed to rebut the presumption of forfeiture. We also hold that the District Court’s findings were supported by substantial credible evidence.

Affirmed.

JUSTICES GRAY, HUNT, TRIEWEILER and LEAPHART concur.


text:
    DOUBLE AA CORPORATION, a Delaware corporation, Plaintiff, Appellant, and Cross-Respondent, v. NEWLAND & COMPANY, Successor Trustee of the Raymond W. George Trust, Defendant and Respondent, and JAMES W. SIEVERS, Intervenor Defendant, Respondent, and Cross-Appellant.
    No. 95-064.
    Submitted on Briefs May 25, 1995.
    Rehearing Denied November 16, 1995.
    Decided October 24, 1995.
    52 St.Rep. 1073.
    905 P.2d 138.
    273 Mont. 486.

      For Appellant: Joseph T. Swindlehurst, Huppert & Swindlehurst, Livingston.
    For Respondent: James P. Harrington, Attorney at Law, Butte (for Newland & Company); John T. Jones and Harlan B. Krogh, Moulton, Bellingham, Longo & Mather, Billings (for James W. Sievers).
    For Amicus: Rockwood Brown, Brown, Gerbase, Cebull, Harman & Ross, Billings (for Kenneth D. George and Shirley G. Bragg).
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Plaintiff Double AA Corporation filed a complaint in the District Court for the Sixth Judicial District in Park County, in which it alleged that Shirley Bragg, trustee of the Raymond W. George Trust, who has been succeeded as trustee by Newland & Company, breached a buy-sell agreement for the sale of a ranch held by the trust and that it was entitled to specific performance. The trustee, as well as James W. Sievers, the intervenor, opposed Double AA’s request for specific performance. After a trial, the District Court entered its findings, conclusions, and judgment, which denied Double AA’s request for specific performance but awarded it damages. Double AA appeals the District Court’s findings, conclusions, and judgment, and Sievers cross-appeals specific findings. We affirm the judgment of the District Court.

The issue on appeal is whether the District Court abused its discretion when it denied Double AA’s request for specific performance.

The issue raised on cross-appeal is whether the District Court erred when it made findings of fact numbered 73 and 74.

FACTUAL BACKGROUND

The ranch, which is the subject of the dispute, formerly belonged to Raymond George. Raymond died in 1974 and, as provided in his will, left the ranch in a testamentary trust for his family. His daughter Maxine was designated the trustee. The trust provided that his wife, Olga George, would receive income from the trust for her life and that the George children held remainder interests as follows: Maxine George — three-ninths, as well as a first option to purchase from the other remaindermen; Leo George — two-ninths; Kenneth George— two-ninths; and Shirley Bragg — two-ninths. Maxine died in 1980, and eventually the remaindermen agreed with her surviving husband, Cleto McPherson, that he would be entitled to her share and first option. Shirley Bragg became the trustee following Maxine’s death.

On December 13, 1989, Double AA Corporation, a Delaware Corporation whose sole shareholders are Charles Alimón and Gwen Alimón, agreed with Shirley Bragg, who at that time was the trustee of the Raymond W. George trust, to purchase the George family’s ranch in the Paradise Valley south of Livingston. Shirley agreed on behalf of the trust to convey the property, and a substantial deposit was transferred.

At trial, Shirley testified that in 1988 she had received advice from Wes Johnson, a financial planner for Investment Diversified Services (IDS), that if the trust did not sell the ranch there would be tax consequences in an amount between $200,000 and $300,000 at the time of Olga’s death. Olga was nearly 90 years old when Shirley received this advice. Wes Johnson admitted he had little knowledge about taxes and was not qualified to render tax advice. He also testified that he was paid on a commission basis, and as a result felt pressure to locate investors for IDS. He encouraged that the ranch be sold and the proceeds be invested with IDS. Shirley testified that she reluctantly agreed to sell because of Johnson’s tax advice.

Shirley petitioned the District Court to approve the sale of the ranch. Sievers intervened and objected on the basis that he had purchased a five-ninths remainder and a first option to buy from the other remaindermen. In September 1990, District Court Judge Byron Robb, granted the petition to confirm the sale and dismissed Sievers’ objection. He specifically found that:

While the testator here gave his daughter Maxine a right to purchase the interest of the other children in the ranch, I find it obvious this was personal to her because she remained on the place while the others left. I thus conclude it doubtful such option passed to Maxine’s husband and sole heir, Cleto McPherson, and although the other children made agreements with him to have such privilege at a different value than Mr. George contemplated, Cleto never exercised such right and now has no ability to do so or to keep the ranch in the family, andlfind it most tenuous that Grandpa George ever intended that such option to purchase would pass to or be enforceable by a stranger as Mr. Sievers contends. Further, the trustee was not a party to such option agreements and is not bound by them.

In November 1990, an attorney from Livingston informed Shirley that no taxes would be due as a result of Olga’s death. On December 2, 1990, Shirley sent Charles Alimon a letter in which she advised him that she wanted to rescind the agreement with Double AA. On April 2, 1991, Shirley filed a motion to dismiss her petition for a declaration of her right and authority to sell the trust property and to cancel the sale to Double AA. The District Court denied her motion and ordered the sale to proceed. We affirmed the District Court’s conclusion that Shirley had the right and authority to sell the ranch and affirmed the District Court’s finding that the sale was fair and reasonable. In re Raymond W. George Trust (1992), 253 Mont. 341, 834 P.2d 1378. However, we reversed that part of the District Court’s decision which granted specific performance because that issue had not been raised or litigated. In re George Trust, 834 P.2d at 1381-82.

After our decision in In re George Trust, Double AA filed this action for specific performance. Sievers intervened and opposed specific performance because he claimed that in April 1988 he purchased a three-ninths remainder interest from Cleto, in addition to Cleto’s first option to purchase from the other remaindermen. He added that in August 1988 he purchased Leo’s two-ninths remainder interest.

A nonjury trial was held on June 22 and 23,1994. Shirley testified that the erroneous information she had received from Johnson was confirmed by Legal Tech, a Billings accounting firm. However, she was informed in November 1990 that Olga’s death would not result in any immediate tax consequences. Instead, she learned that capital gains tax in the amount of $400,000 would be due upon sale of the ranch to Double AA. She testified that the attorney who represented her prior to the sale had not advised her that Johnson’s advice was incorrect. There was also contradicted testimony that her previous attorney was to receive a percentage of the broker’s commission which was to be paid by Double AA.

In October 1994, the District Court entered its findings of fact, conclusions of law, and judgment. The District Court held that specific performance was improper, but awarded Double AAmoney damages for breach of contract. The court further found that Sievers did not obtain a binding first option to purchase the ranch from the remaining beneficiaries.

Double AA appeals from the District Court’s decision, and Sievers cross-appeals from the District Court’s findings that he did not have a valid first option to purchase.

ISSUE 1

Did the District Court abuse its discretion when it denied Double AA’s request for specific performance?

We review a district court’s denial of a request for specific performance to determine whether the district court abused its discretion. Larson v. Undem (1990), 246 Mont. 336, 342-43, 805 P.2d 1318, 1322.

Double AA acknowledges that specific performance is an equitable remedy within the District Court’s discretion but suggests that the court’s discretion is narrow. It contends that the District Court did not exercise sound discretion.

The trustee claims, and Sievers agrees, that under the circumstances the District Court did not abuse its discretion.

Specific performance is an equitable remedy which requires performance of a contract based on the precise terms contained in the contract. Siefert v. Siefert (1977), 173 Mont. 501, 504, 568 P.2d 155, 156.

“[SJpecific performance will be ordered only on equitable grounds in view of all the conditions surrounding the particular case. ...”
“A bill in equity for specific performance is an appeal to the conscience of the court, and generally, in such a proceeding, the inquiry must be whether, in equity and good conscience, the court should specifically enforce the contract. Accordingly, specific performance will be granted when it is apparent from a view of all the circumstances of the particular case that it will serve the ends of justice, and it will be withheld when, from a like view, it appears that it will produce hardships or injustice to either party ....”

Siefert, 568 P.2d at 157 (quoting 81 C.J.S. Specific Performance § 3). In Siefert, we acknowledged that the appropriateness of specific performance depends on the facts and circumstances of the case. Siefert, 568 P.2d at 157.

In determining whether a contract should be specifically enforced, courts look at the contract, as well as the relationship of the parties, and will determine if the contract to be enforced is fair and reasonable. Factors courts consider include execution of a contract under circumstances unfavorable to the defendant because of lack of advice, and the difference in the parties’ business experience and knowledge. 81 C.J.S. Specific Performance § 49 (1977).

In addition to the above guidelines, Montana statutes identify some situations in which specific performance is appropriate. Specific performance may be necessary when pecuniary compensation for a defendant’s failure to perform pursuant to the terms of a contract does not afford adequate relief. Section 27-1-411(2), MCA. More specifically, in contracts involving the sale of land, “[i]t is to be presumed that the breach of an agreement to transfer real property cannot be adequately relieved by pecuniary compensation....” Section 27-1-419, MCA.

Section 27-1-415, MCA, however, provides circumstances in which a party cannot be compelled to specifically perform.

Specific performance cannot be enforced against a party to a contract in any of the following cases:
....
(2) if it is not, as to him, just and reasonable;
(3) if his assent was obtained by the misrepresentations, concealment, circumvention, or unfair practices of any party to whom performance would become due under the contract or by any promise of such party which has not been substantially fulfilled; or
(4) if his assent was given under the influence of mistake, misapprehension, or surprise ....

Section 27-1-415, MCA.

The District Court made specific findings, which are supported by substantial evidence, in relation to the above-listed equitable considerations and statutes. The court found: (1) Double AA knew, or should have known, before the sale, that Shirley misapprehended facts material to the contract and Shirley testified she told Charles that she felt pressured to sell because of her erroneous belief regarding the potential tax liability; (2) Shirley was a victim of mistaken information and inaccurate advice. The “mistaken fact [regarding taxes] more than anything else was the reason Shirley consented to [the] sale [of] the George family ranch”; (3) Charles and Shirley had extremely divergent backgrounds in business transactions. Charles was a well-known professional investor, had experience in multi-million dollar transactions, and had extensive education, background, and experience in business. To the contrary, Shirley was a somewhat unsophisticated trustee who was neither prepared for her position as trustee nor educated in business nor business transactions, negotiations, or taxes.

Finally, the court found that the land was not unique to Double AA. Charles testified that the ranch was no more unique than land that he already had except that it was contiguous with property he owned in the Paradise Valley. The court found that the loss would impose a greater hardship on the George Family Trust than Double AAbecause Shirley’s decision to sell was a direct result of the incorrect tax advice, and the ranch had been in the George family for over 100 years.

Based on its findings, the court concluded that, in light of the circumstances surrounding the execution of the contract, specific performance was not appropriate because the contract was not fair, just, and reasonable, and Shirley’s assent was based on a mistake or misapprehension. Section 27-1-415, MCA.

Double AA argues that a misunderstanding or mistake regarding tax consequences is not a sufficient reason to avoid the transaction and that the exceptions to specific performance codified in § 27-1-415, MCA, do not apply.

While a misapprehension or mistake regarding taxes is insufficient to avoid a contract, Quinn v. Briggs (1977), 172 Mont. 468, 475, 565 P.2d 297, 301, such a misunderstanding or mistake, in light of the surrounding circumstances, may be a sufficient reason to deny specific performance as an equitable remedy. See 11 Samuel Williston, Williston on Contracts § 1427 (3d ed. 1968); Corbin on Contracts § 1166 (1964).

Moreover, we have upheld the denial of specific performance where the defendant relied on advice from her attorney which produced factual and legal misapprehensions. Stovall v. Watt (1980), 187 Mont. 439, 610 P.2d 164. In Stovall, we recognized that specific performance is improper if there is a mistake as set forth in § 27-1-415(4), MCA, or if the circumstances show that specific performance would impose a considerable hardship. Stovall, 610 P.2d at 167 (citing Siefert, 568 P.2d at 157). Based on the total circumstances, and balancing the equities, we upheld the district court’s denial of a request for specific performance against the seller. Stovall, 610 P.2d at 167-68.

The facts in Stovall are distinguishable from this case. Nonetheless, the principles on which we relied in Stovall apply. Here, the District Court found that specific performance would impose a greater hardship on the seller than denial would impose on the buyer.

Double AA also challenges the District Court’s findings regarding Shirley’s mistake or misapprehension because testimony indicated that other factors motivated her to sell, and evidence contradicts her position. In the exercise of its discretion, part of the District Court’s responsibility was to weigh conflicting testimony. The district court is in a better position to observe the credibility and demeanor of witnesses than this Court. We will not second guess the district court’s determination regarding the strength and weight of conflicting testimony. See In re Marriage of Newton (1992), 255 Mont. 463, 466, 844 P.2d 47, 49.

Based on the equitable principles and statutory criteria set forth above, evidence in the record, and the District Court’s findings, including the parties’ unequal positions and the mistaken information on which the trustee relied, we hold that the District Court did not abuse its discretion. We affirm the District Court’s denial of Double AA’s request for specific performance.

ISSUE 2

Did the District Court err when it made findings of fact numbered 73 and 74?

Our standard of review of a district court’s findings of fact is whether they are clearly erroneous. Columbia Grain Int’l v. Cereck (1993), 258 Mont. 414, 417, 852 P.2d 676, 678.

Sievers contends that we should vacate the District Court’s findings of fact numbered 73 and 74 because the court improperly found that Sievers did not acquire a first option against Shirley Bragg, Kenneth George, and Leo George. Sievers contends that the findings were not relevant to Double AA’s request for specific performance, and he has not had an adequate opportunity to introduce evidence in support of his position. Sievers adds that the District Court was not empowered to enter a judgment which affected the property rights of individuals who were not parties to the litigation. In making that argument, he relies on § 25-9-201, MCA, and Warnack v. Coneen Family Trust (1994), 266 Mont. 203, 879 P.2d 715.

After Sievers raised this issue by cross-appeal, we allowed Shirley Bragg and Kenneth George to file an amicus brief in support of their position. They contend that unlike the nonparty in Warnack, they are not complete strangers to the litigation.

In the initial proceeding before Judge Robb, Sievers intervened and asserted he had a first option. Judge Robb rejected Sievers’ position. He asserted the same argument when he intervened in the present case; Judge Sullivan also rejected Sievers’ contention. In findings of fact numbered 73 and 74, the court reaffirmed Judge Robb’s prior determination that the option did not pass to Sievers. In finding of fact number 74, the court found specifically that Sievers did not purchase a first option which is binding on the other remaindermen.

Sievers now contends, after two district court judges have found contrary to the position he asserted by intervening, that those courts were without authority to make the challenged findings because the other remaindermen were not parties to the present action. We disagree and conclude that Sievers’ reliance on procedural flaws is an insufficient basis on which to set aside the District Court’s findings.

Section 25-9-201, MCA, states that subject to Rule 54(b), M.R.Civ.P., a judgment may be given for or against one or more of several plaintiffs and for or against one or more of several defendants. In Warnack, we held that the District Court erred when it awarded a prescriptive easement to a nonparty. We stated that:

[I]t is a fundamental principle of our jurisprudence that it is only against a party to the action that a judgment can be taken and that the judgment is not binding against a stranger to the action.

Warnack, 879 P.2d at 718 (quoting Moore v. Capitol Gas Corp. (1945), 117 Mont. 148, 156, 158 P.2d 302, 306). In Warnack, we recognized that the above rule applied where a judgment was awarded in favor of a nonparty.

However, this case is distinguishable. Section 25-9-201, MCA, does not preclude a party who voluntarily intervenes from having an adverse judgment entered against him or her. See Rule 54(b), M.R.Civ.P. (stating that a final judgment may grant relief to which the party is entitled). Sievers voluntarily intervened and asserted that he purchased a valid first option. The interested remaindermen did not intervene to protect their interests. However, unlike Warnack, the remaindermen were aligned with the trustee’s position. Additionally, the remaindermen were not strangers to the action; they are heirs of the trustor and have an ownership interest in the trust. A decision against the trustee would adversely affect the remaindermen.

Sievers contends that it would be unfair to allow parties to benefit from a judgment if they did not appear to litigate the merits. The logical conclusion of Sievers’ position is that he may intervene and assert a position contrary to the remaindermen, but if he loses, claim the adverse decision was not binding. Sievers has merely asserted a procedural flaw from which he claims he should benefit because he is dissatisfied with the outcome. Despite the fact that the remainder-men did not intervene to protect their position, they were aligned with the trustee. Sievers introduced evidence in support of his position and must abide by the District Court’s decision. Absent a specific indication of how the District Court’s findings were clearly erroneous, or an indication that the court erred as a matter of law, we must affirm the District Court’s findings. Sievers has failed to indicate that the District Court’s findings were clearly erroneous. Therefore, we affirm the District Court’s findings.

The judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, NELSON and LEAPHART concur.

      . In In re George Trust, we upheld the District Court’s finding that Double AA’s offer of $1,300,000, along with the other benefits, was fair and reasonable. We noted that:
      the validity of the contract between the trust and Double AA and any rights of the parties resulting from the contract were not the subject of the litigation. The evidence presented only regarded the fairness and reasonableness of Double AA’s offer and the agreement that the parties entered.

        In re George Trust, 834 P.2d at 1381. We do not construe the above language to mean that, as to whether specific performance was appropriate, the contract was fair and reasonable because we did not address whether it would be fair and reasonable to specifically enforce the contract.


author: JUSTICE HUNT

text:
    In re the Marriage of MARY CLAIR WELCH, Petitioner and Respondent, vs. JOHN WILLIAM WELCH, Respondent and Appellant.
    No. 95-271.
    Submitted on Briefs September 21, 1995.
    Rehearing Denied November 21, 1995.
    Decided October 24, 1995.
    52 St.Rep. 1081.
    905 P.2d 132.
    273 Mont. 497.

      For Appellant: John L. Hollow, Helena.
    For Respondent: Richard L. Parish, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

Petitioner Mary Clair Welch (Mary Clair) moved the First Judicial District Court, Meagher County, to modify the parties’ divorce decree to increase the amount of child support Respondent John William Welch (John) is required to pay. After a hearing on her motion, the child support was increased. John appeals.

Affirmed.

ISSUES

The following issues are raised on appeal:

1. Did the District Comb err in declining to make specific findings of fact and conclusions of law?

2. Did the District Court err in failing to use the parties’ current gross incomes in determining child support?

3. Did the District Court err in including in the order supplemental support for day care and extraordinary medical expenses?

4. Did the District Court err in refusing to grant John a variance for long-distance visitation or his higher cost-of-living?

5. Did the District Court err in making the increased support retroactive to the date of the hearing?

FACTS

John and Mary Clair were married in July 1978 and divorced in October 1984. They have two children, a 15-year-old son and a 16-year-old daughter. While their son is healthy, their daughter suffers from a degenerative neuromuscular disease which has confined her to a wheelchair and rendered her wholly unable to care for herself. John now lives in the Washington, D.C. area, while Mary Clair and the children continue to reside in Montana.

Pursuant to the settlement agreement entered into by the parties at the time of their divorce, John was required to provide child support in the amount of $125 per month for each child. The record does not state whether the daughter was ill at the time of the divorce, but does reveal that her condition has been deteriorating for some years now.

In May 1993, John moved the District Court for modification of the divorce decree, requesting extended visitation with his son. (The daughter is unable to travel to John’s home for visitation.) This motion was subsequently granted. In June 1993, Mary Clair also moved the District Court for modification of the divorce decree, asking for, among other things, an increase in child support. The hearing on her motion was continued twice, once at her request and once at John’s, but finally took place on March 1, 1994.

At the hearing, Mary Clair provided the District Court with a child support worksheet her attorney had prepared, and testimony was taken from both parties. After the hearing, the District Court ordered both parties to submit financial information to the Montana Child Support Enforcement Division so the Division could determine an appropriate amount of child support. However, the Division apparently declined to make such a determination. In June 1994, Mary Clair moved the court to render a decision or reset the matter for hearing. In April 1995 the District Court issued its order, adopting the figures from Mary Clair’s child support worksheet and increasing the child support accordingly. John appeals from that decision.

STANDARD OF REVIEW

This Court will review a district court’s overall decision on modification of child support awards to determine whether the court abused its discretion. In re Marriage of Kovash (1995), 270 Mont. 517, 893 P.2d 860, 863. The district court’s determination is presumed to be correct and, absent an abuse of discretion, will not be disturbed. In re Marriage of Hunt (1994), 264 Mont. 159, 870 P.2d 720. See also In re Marriage of Platt (1994), 267 Mont. 38, 881 P.2d 634; In re Marriage of Sacry (1992), 253 Mont. 378, 833 P.2d 1035; In re Marriage of Parrish (1988), 234 Mont. 345, 763 P.2d 658.

Issue 1

Did the District Court err in declining to make specific findings of fact and conclusions of law?

The order of the District Court in this matter was not accompanied by specific findings of fact or conclusions of law. John contends the lack of specific findings and conclusions is reversible error.

Rule 52(a), M.R.Civ.P., states that “[flindings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56 or any other motion except as provided in subdivision (c) of this rule.” Subsection (c) involves judgments at trial and is inapplicable in this case. This matter was brought before the District Court on motion by Mary Clair. Therefore, under Rule 52(a), specific findings and conclusions are not required.

John correctly notes that this Court encourages a district court to include finding of fact and conclusions of law whenever practicable. This encouragement, however, does not translate into an absolute requirement. This Court has found in the past that specific findings and conclusions are not necessary in certain child support and custody cases. See In re Marriage of Vinecke (1986), 221 Mont. 58, 716 P.2d 638; Baker v. Baker (1982), 198 Mont. 371, 646 P.2d 522.

Because the Rules do not require a judge to enter specific findings of fact and conclusions of law under these circumstances, it was not an abuse of discretion for the District Court to omit them.

Issue 2

Did the District Court err in failing to use the parties’ current gross incomes in determining child support?

John alleges the District Court erred in using income figures from the parties’ 1992 tax returns to calculate support. He argues the court should have employed 1993 income figures or, in the alternative, should have allowed John to deduct certain moving expenses and overtime income from the 1992 figures.

The District Court utilized income figures from the last year for which both parties provided documentation in the form of their respective income tax returns. That year was 1992. While John did testify his income for 1993 was lower than that which was reported on his tax return for 1992, his testimony was not corroborated by his 1993 tax return or any other documentation.

The testimony of any witness is generally sufficient to establish a fact. See § 26-1-301, MCA; Kovash, 893 P.2d at 864. However, when the testimony is potentially self-serving, the court may legitimately expect the witness to offer corroborating evidence if possible. John offered no such evidence. In this case, the latest documented income figures available to the court were for 1992. It is not error for a court to use those figures which are actually before it in order to determine support. Platt, 881 P.2d at 636. Therefore, the court did not abuse its discretion by calculating support from the 1992 income figures.

John also argues the court abused its discretion by refusing to deduct certain moving expenses and overtime pay from his 1992 income before using that amount to figure support.

ARM 46.30.1508 states “ ‘gross income’ means income from any source, except as excluded in subsection (d).” (Enabled by § 40-5-209, MCA, emphasis added.) Subsection (d) concerns public assistance programs, and is not applicable in this case. Nevertheless, John argues that “gross income” for purposes of calculating support should not include moving expenses or overtime, even though such amounts were reported to the federal government as gross income on his tax return. John offers no case law supporting his claimed exclusion for moving expenses, nor did he testify at the hearing as to what specific amount he spent on moving. Given the lack of precedent or specific testimony, it was not an abuse of discretion for the court to refuse to deduct moving expenses from John’s gross income before determining support.

As for the issue of overtime, the District Court did not consider it because John never raised it. Overtime was not discussed in the hearing, nor does it appear in any of the court documents. It was not an abuse of discretion for the court to fail to grant relief for which John never asked. Further, this Court will not review an issue which is raised for the first time on appeal. In re Marriage of Erler (1993), 261 Mont. 65, 862 P.2d 12. The use of the parties’ 1992 gross income, as shown by their respective tax returns, was not an abuse of discretion.

Issue 3

Did the District Court err in including in the order supplemental support for day care and extraordinary medical expenses?

John alleges that the District Court erred by ordering him to pay additional support for day care and extraordinary medical expenses. John argues that Medicaid pays for all medical expenses and that day care expenses are avoided by having the son care for the daughter.

Mary Clair testified she receives Medicaid money for respite care, but she also testified that such money specifically may not be used to pay for child care during the hours when she is at work. Mary Clair works full time. Her daughter needs constant supervision and care. It was not an abuse of discretion for the court to expect John to assist with the cost of that care, regardless of his son’s contributions.

The court also ordered John to contribute each month towards extraordinary medical expenses. Mary Clair testified that their daughter incurs extra expenses, such as the cost of repairing the wheelchair lift which provides the daughter with access to and from the family home. John may reasonably be required to pay a given amount towards such expenses. The court did not abuse its discretion by including in the order supplemental support for day care and extraordinary medical expenses.

Issue 4

Did the District Court err in refusing to grant John a variance for long-distance visitation or his higher cost of living?

John alleges that he was entitled to a variance in his child support obligation because of the expenses he incurs due to long-distance visitation and the higher cost of living in Washington, D.C.

In discussing child support obligations, a “variance” is a reduction in support granted to one party due to extraordinary expenses. John contends he should have been granted a variance for long-distance visitation, long-term visitation, and the fact that it cost more to live in Washington, D.C. than it does to live in Montana. All of these factors are acceptable reasons for the granting of a variance. Section 40-5-209, MCA.

Support awards determined under the Montana Child Support Guidelines are presumed to be correct, but this presumption may be rebutted by evidence that a child’s needs are not being met. In order to rebut the presumption, the party seeking the variance must present competent evidence showing that application of the guidelines would be unjust or inappropriate. Such evidence may include documents such as a financial affidavit and a child support worksheet. Section 40-5-209, MCA.

While it is true in this case that John requested a variance at the hearing, he offered no documentation regarding the cost of living or the costs of travelling for visitation. He did testify that in his opinion it was “at least 200 percent” more expensive to live in Washington, D.C. than it was to live in Montana. This opinion was not substantiated by any concrete evidence.

This Court faced a similar situation in In re Marriage of Nash (1992), 254 Mont. 231, 836 P.2d 598. In that case, the appellant alleged that the district court’s failure to grant a variance for the higher cost of living in Alaska was an abuse of discretion. But this Court found:

[Appellant] introduced no statistical data to support his claim that the cost of living adjustment in Alaska is 70 percent higher than in Montana. Nor did he cite specific examples of increased cost, other than transportation. The District Court was free to disregard his unsubstantiated estimate.

Nash, 836 P.2d at 601. In order to receive a variance, John was required to present competent evidence showing why he was entitled to one. A bare claim of entitlement alone is not enough.

We have already stated that when a party alleges that a variance in living expenses is due, the party must submit competent evidence to prove that the amount of support should be reduced... We conclude that without a proper foundation for the alleged amount of variance, the court did not abuse its discretion in failing to subtract these amounts from [the award].

Platt, 881 P.2d at 636-37. Because John submitted no competent evidence regarding his request for a variance, the District Court’s refusal to grant one was not an abuse of discretion.

Issue 5

Did the District Court err in making the increased support retroactive to the date of the hearing?

In its order of April 1995, the District Court made the increased support retroactive to the date of the hearing, which was held in March 1994. John alleges the District Court abused its discretion by making the award retroactive.

‘Whether child support is awarded retroactively to the date of notice of a motion for modification is clearly within the discretion of the district court.” In re Marriage of Hill (1994), 265 Mont. 52, 57, 874 P.2d 705, 707, citing In re Marriage of Fronk v. Wilson (1991), 250 Mont. 291, 297, 819 P.2d 1275, 1279. See also Nash, 836 P.2d 598; In re Marriage of Gebhardt (1989), 240 Mont. 165, 783 P.2d 400; and In re Marriage of Saylor (1988), 232 Mont. 294, 756 P.2d 1149.

The court found Mary Clair needed additional support to meet the expenses related to the care of her children. These expenses did not begin after the court entered its order, but were being incurred since the filing of the petition, if not before. “There is no reason to distinguish between the support necessary after the court’s order and the children’s needs from the time of [the] petition until the order was entered.” Hill, 874 P.2d at 709.

John’s arguments that such an award is inappropriate because it places upon him a sudden and significant debt, as well as the potential stigma of a “dead-beat dad,” are unpersuasive. For years John has contributed $250 per month towards the care of his children, leaving Mary Clair responsible for all additional costs. If he were not made to contribute the greater support until after the order was entered, it would mean another thirteen months during which Mary Clair must pay most of the costs of child care. His understandable reluctance to be saddled with a significant debt nevertheless does not justify placing this additional burden on Mary Clair. Any stigma which might attach, while unfortunate, is beyond the control of the courts. In any case, the stigma presumably will be removed once the debt is paid.

Since the ability to grant retroactive support is entirely discretionary, the District Court’s decision was not an abuse of discretion.

Affirmed.

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


author: JUSTICE GRAY

text:
    CLEVE LONEY, Plaintiff and Appellant, v. MILODRAGOVICH, DALE & DYE, P.C., Defendant and Respondent.
    No. 95-195.
    Submitted on Briefs September 13, 1995.
    Decided October 31, 1995.
    52 St.Rep. 1093.
    905 P.2d 158.
    273 Mont. 506.

      For Appellant: Antonia P. Marra; Bell & Marra, Great Falls.
    For Respondent: Jon R. Binney; Milodragovich, Dale, Steinbrenner & Binney, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

Cleve Loney (Loney) appeals from an order of the Fourth Judicial District Court, Missoula County, dismissing his complaint for failure to state a claim upon which relief could be granted. We affirm.

The issue on appeal is whether the District Court erred in dismissing Loney’s complaint pursuant to Rule 12(b)(6), M.R.Civ.P., on the basis that his claim is barred by the doctrine of res judicata.

The law firm of Milodragovich, Dale and Dye, P.C. (the Firm) represented Loney in bankruptcy proceedings. In April of 1991, the Firm filed an action to recover unpaid attorney’s fees from Loney. Loney failed to answer the complaint and a default judgment in the amount of $7,626.42 was entered against him in September of 1991.

In October of 1994, Loney filed a complaint against the Firm requesting that the District Court declare the default judgment void and unenforceable because the debt had been discharged in bankruptcy. The Firm moved to dismiss the complaint pursuant to Rule 12(b)(6), M.R.Civ.P. After considering the parties’ pleadings and briefs, the District Court concluded that Loney’s failure to affirmatively plead discharge in bankruptcy pursuant to Rule 8(c), M.R.Civ.P, during the Firm’s action against him constituted a waiver of that defense. The court further concluded that Loney’s claim against the Firm was barred by the doctrine of res judicata and, on that basis, dismissed Loney’s complaint for failure to state a claim upon which relief could be granted. Loney appeals.

Did the District Court err in dismissing Loney’s complaint pursuant to Rule 12(b)(6), M.R.Civ.P., on the basis that his claim is barred by the doctrine of res judicata?

In evaluating a Rule 12(b)(6) motion to dismiss, courts are required to construe a complaint in the light most favorable to the plaintiff. A complaint should not be dismissed unless it appears that the plaintiff is not entitled to relief under any set of facts which could proved in support of the claim. Boreen v. Christensen (1994), 267 Mont. 405, 408, 884 P.2d 761, 762 (citation omitted). The District Court’s determination that Loney’s complaint failed to state a claim upon which relief could be granted, on the basis that it was barred by the doctrine of res judicata, is a conclusion of law. See Boreen, 884 P.2d at 762. We review a district court’s conclusions of law to determine whether the interpretation of the law is correct. Boreen, 884 P.2d at 762 (citation omitted).

The doctrine of res judicata prevents a party from re-litigating a matter that the party has already had an opportunity to litigate. Greenwood v. Steve Nelson Trucking, Inc. (1995), 270 Mont. 216, 890 P.2d 765, 767 (citation omitted). It is based on the public policy that there must be some end to litigation. Wellman v. Wellman (1983), 205 Mont. 504, 508, 668 P.2d 1060, 1062. Aclaimis res judicata when four criteria are met: the parties or their privies are the same; the subject matter of the claim is the same; the issues are the same and relate to the same subject matter; and the capacities of the persons are the same in reference to the subject matter and the issues. Greenwood, 890 P.2d at 767 (citation omitted).

Loney does not dispute that three of the four res judicata criteria are satisfied in this case. The parties are the same in both actions; the Firm sued Loney in the earlier proceeding and Loney sued the Firm in the present action. The subject matter is also the same; both actions are based on the unpaid attorney’s fees the Firm is attempting to collect from Loney. The capacity of the parties involved has not changed in relation to the subject matter and the issues in the litigation.

Loney argues, however, that the issue in the present action is not the same as the issue resolved by the 1991 default judgment against him and, therefore, that his action against the Firm is not barred by the doctrine of res judicata. He contends that the issues are different in that the 1991 default judgment determined the amount of unpaid attorneys fees, while the issue in his action against the Firm is the voidness of that judgment based on the prior bankruptcy court order discharging his debts.

While it is true that the specific issue of whether the unpaid attorneys fees were discharged in bankruptcy was not litigated in the Firm’s action against Loney, the doctrine of res judicata bars not only issues which were previously litigated, but also issues which could have been litigated in the prior proceeding. See State ex rel. Harlem Irrigation Dist. v. Montana Seventeenth Judicial Dist. Court (1995), [271 Mont. 129], 894 P.2d 943, 946 (citation omitted). Whether the unpaid attorney’s fees were discharged in bankruptcy is inseparable from the issue presented in the prior proceeding, namely, whether Loney owed the Firm attorney’s fees. The fact that Loney did not answer the Firm’s complaint and, as a result, that a default judgment was entered against him does not negate the fact that he had an opportunity to litigate the issue. See Greenwood, 890 P.2d at 767.

Moreover, Rule 8(c), M.R.Civ.P, required Loney to plead discharge in bankruptcy as an affirmative defense to the Firm’s complaint in the prior proceeding. We consistently have stated that failure to affirmatively plead a defense set forth in Rule 8(c) generally results in a waiver of that defense. See, e.g., Brown v. Ehlert (1992), 255 Mont. 140, 146, 841 P.2d 510, 514; Nimmick v. Hart (1991), 248 Mont. 1, 8, 808 P.2d 481, 486; Pracht v. Rollins (1989), 239 Mont. 62, 68, 779 P.2d 57, 61; Taylor v. Dep’t of Fish, Wildlife & Parks, State of Montana (1983), 205 Mont. 85, 96, 666 P.2d 1228, 1233. Thus, in addition to having the opportunity to litigate this issue in the earlier proceeding, Loney was required to raise the matter of discharge in bankruptcy by Rule 8(c), M.R.Civ.P., or waive the defense.

We conclude that the issue presented in this action is the same as the issue resolved by the 1991 default judgment against Loney. Having determined that all four criteria necessary for application of res judicata are satisfied, we hold that the District Court did not err in concluding that Loney’s claim against the Firm was barred by the doctrine of res judicata.

Loney also argues on appeal that, because the 1991 default judgment is void, he can collaterally attack that judgment at any time in a motion or an independent action pursuant to Rule 60(b)(4) and (6), M.R.Civ.P. Loney’s argument mischaracterizes Rule 60(b). Aparty seeking relief from a final order or judgment can file either a motion for relief based on one of the subsections of Rule 60(b) or an independent action under the residual clause of Rule 60(b). See Brown v. Small (1992), 251 Mont. 414, 420, 825 P.2d 1209, 1213; Rule 60(b), M.R.Civ.P.

Although Loney’s argument is purportedly based on Rule 60(b)(4) and (6), these subsections of Rule 60(b) are inapplicable here because he did not seek relief from the default judgment via a Rule 60(b) motion filed in that case. See Brown, 825 P.2d at 1213. Instead, Loney brought an independent action for relief from the default judgment. Therefore, we examine his action under the residual clause of Rule 60(b), M.R.Civ.P.

The residual clause of Rule 60(b), M.R.Civ.P., allows a party to file an independent action for relief from a final judgment or order under very limited circumstances. We recently clarified that the available grounds for relief pursuant to the residual clause are: lack of personal notification, fraud upon the court, or an independent action for extrinsic fraud. In re Marriage of Miller (1995), [273 Mont. 286], 902 P.2d 1019,1022 (citing Salway v. Arkava (1985), 215 Mont. 135, 695 P.2d 1302).

Loney argues that his independent action is premised on the Firm’s extrinsic fraud in failing to inform the District Court that the contested attorney’s fees had not been approved by the bankruptcy court. He relies on In re Marriage of Madden (1984), 211 Mont. 237, 683 P.2d 493. We recently overruled Marriage of Madden, however, to the extent that it incorrectly characterized intrinsic fraud as extrinsic fraud and set aside the judgment on that basis pursuant to the residual clause of Rule 60(b), M.R.Civ.P. Marriage of Miller, [273 Mont. 286], 902 P.2d at 1023.

Furthermore, we note that Loney’s specific extrinsic fraud argument, that the Firm failed to disclose to the District Court that the fees had not been approved by the bankruptcy court, is inseparable from the issue presented in the earlier proceeding of whether Loney owed the Firm attorney’s fees and, therefore, is inextricably intertwined with our conclusion that this issue is the same as that resolved by the 1991 default judgment against Loney. Under the circumstances of this case, Loney cannot circumvent the doctrine of res judicata through reliance on the residual clause of Rule 60(b), M.R.Civ.P.

Loney also argues, in his reply brief on appeal, that the court lacked jurisdiction to enter the 1991 default judgment. Rule 23(c), M.R.App.P., requires that an appellant’s reply brief be confined to new matter raised in the respondent’s brief; thus, an appellant is prohibited from raising new issues in a reply brief. See Denend v. Bradford Roofing & Insulation (1985), 218 Mont. 505, 510, 710 P.2d 61, 64. Accordingly, we will not address the merits of an issue presented for the first time in a reply brief on appeal.

Affirmed.

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