author: JUSTICE HARRISON JUSTICE TRIEWEILER

text:
    SJL OF MONTANA ASSOCIATES LIMITED PARTNERSHIP, d/b/a KTVQ, Petitioner and Respondent/Cross-Appellant, v. CITY OF BILLINGS, Respondent and Appellant/Cross-Respondent.
    No. 92-449.
    Submitted on February 23, 1993.
    Rehearing Denied March 1, 1994.
    Decided December 28, 1993.
    50 St.Rep. 1726.
    263 Mont. 142.
    867 P.2d 1084.

      JUSTICE TRIEWEILER filed a dissenting opinion in which JUSTICE HUNT joined.
    For Respondent and Appellant/Cross-Respondent: James L. Tillotson, City Attorney; Bonnie J. Sutherland, Assistant City Attorney, Billings (argued).

      For Petitioner and Respondent/Cross-Appellant: William J. O’Connor, II; O’Connor & O’Connor, Billings (argued).
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal and cross-appeal from an order and memorandum of the Thirteenth Judicial District Court, Yellowstone County, granting petitioner’s motion for declaratory judgment, denying petitioner’s request for attorney’s fees, and finding petitioner’s request to void certain actions and for an injunction moot. We reverse.

Appellant City of Billings (City) raises the following issue:

1. Did the District Court err in holding that Article II, Section 9 of the Montana Constitution required that a meeting involving the Billings Public Works Director, the City Engineer, and individuals representing a private contractor and private engineering company be open to the public?

Cross-appellant SJL of Montana Associates Limited Partnership, d/b/a KTVQ (KTVQ), raises the following issues:

2. Did the District Court abuse its discretion in denying KTVQ’s request for attorney’s fees pursuant to § 2-3-221, MCA?

3. Although the District Court determined that KTVQ’s request for an injunction was moot, does the controversy continue under the standard “capable of repetition, yet evading review?”

Because of our resolution of issue one, we need not address issues two and three.

On May 22, 1992, a meeting was held in the office of the Public Works Department for the City of Billings. City Engineer Kurt Corey (Corey), Public Works Director Ken Haag (Haag), and representatives of Empire Sand and Gravel and Engineering Incorporated attended. No members of the city council were present. The purpose of the meeting was to discuss the problems and concerns surrounding the delays in construction on 27th Street in Billings (the 27th Street project) and how to keep the surrounding property owners better informed. No new contracts were entered into and no amendments to the existing contracts were made.

Brian Michael (Michael), a reporter from KTVQ, learned of the meeting on May 20th while following up on a tip that there was a dispute between the City and Empire Sand and Gravel. Corey told him that the press would not be allowed into the meeting because it was a “staff meeting,” and that Empire Sand and Gravel did not want the media there. Michael was denied access because the City Attorney had advised Haag that the meeting need not be open to the public.

On May 22, 1992, KTVQ petitioned the District Court for a declaratory judgment and injunctive relief as follows: 1) declaring the right of a KTVQ reporter to attend the ongoing meetings concerning the 27th Street project; 2) requiring the City to release public records, including the plans and amendments for the 27th Street project; 3) voiding any actions taken at the May 22nd meeting; 4) enjoining further meetings unless the reporter was allowed to attend; and 5) requiring the City to pay KTVQ’s attorney’s fees as provided for in § 2-3-221, MCA.

That afternoon the District Court granted a temporary restraining order enjoining the City and its subdivisions from prohibiting a KTVQ reporter from attending further meetings between the above parties, and the court set a hearing on the petition for June 3rd. Michael was allowed to attend a meeting between the same parties held on May 29th at a local restaurant. After the May 22nd meeting he was also given access to certain documents he had requested.

After the hearing, the District Court allowed the parties time to brief the issues. On July 9th, the court entered an order and memorandum determining the following:

1. KTVQ’s request to void the acts taken at the May 22nd meeting was moot as no action was taken;
2. KTVQ’s request to enjoin the City was moot because the reporter had been allowed to attend later meetings;
3. KTVQ was entitled to a declaratory judgment that it had a constitutional right to attend meetings between the above individuals regarding the 27th Street project; and
4. KTVQ’s request for attorney’s fees must be denied.

We begin by pointing out that this case does not involve a “staff meeting” as the City has attempted to characterize it in the proceedings in the District Court and in this Court. During a hearing on this matter, the District Court and the City Attorney engaged in the following discussion:

MR. TILLOTSON: Certainly it was a scheduled meeting. We have many scheduled staff meetings.

THE COURT: Well, now, define a staff meeting.

MR. TILLOTSON: Staff meeting is a meeting attended by governmental employees.

THE COURT: But not members of the public?

MR. TILLOTSON: That’s correct, Your Honor.

THE COURT: Wasn’t this a meeting between staff and members of the public?

MR. TILLOTSON: Yes, it was.

By the City’s own admission, this was not a “staff meeting.”

I

Does Article II, Section 9 of the Montana Constitution require that these particular meetings be open to the public?

Article II, Section 9 of the Montana Constitution provides:

Right to know. No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.

The Montana Constitution is to be given a “broad and liberal interpretation ...” Arps v. State Highway Comm’n (1931), 90 Mont. 152, 160, 300 P. 549, 553, quoted in Board of Regents v. Judge (1975), 168 Mont. 433, 443, 543 P.2d 1323, 1329. In addition, this Court recently held that:

While the legislature is free to pass laws implementing constitutional provisions, its interpretations and restrictions will not be elevated over the protections found within the Constitution.

In re Lacy (1989), 239 Mont. 321, 325, 780 P.2d 186, 188.

The provisions of Article II, Section 9 are implemented by the open meeting laws, §§ 2-3-201 et seq., MCA. Flesh v. Board of Trustees of Joint School Dist. #2 (1990), 241 Mont. 158, 164, 786 P.2d 4, 8. Thus, the initial question before us is whether the open meeting laws, §§ 2-3-201 et seq., MCA, require the meeting at issue to be open to the public. If so, we need go no further because it will be clear that the City violated these laws in refusing Michael’s request to attend. If not, we must examine whether the statutes implementing the constitutional right to know are unduly restrictive of Article II, Section 9.

Under the open meeting laws,
[a]ll meetings of public or governmental bodies, boards, bureaus, commissions, agencies of the state, or any political subdivision of the state or organizations or agencies supported in whole or in part by public funds or expending public funds must be open to the public.

Section 2-3-203, MCA. The legislature’s intent, clearly expressed in § 2-3-201, MCA, is that

[a]ctions and deliberations of all public agencies shall be conducted openly. The people of the state do not wish to abdicate their sovereignty to the agencies which serve them. Toward these ends, the provisions of the part [open meeting laws] shall be liberally construed.

The meeting at issue was attended by City Engineer Corey, Public Works Director Haag and private persons. It is clear that the meeting was not one of a public or governmental body, board, bureau or commission. Thus, the only manner in which the meeting might fit within the parameters of § 2-3-203, MCA, is if it can be properly construed as a meeting of a public agency.

The term agency is defined in Part 1 of Title 2, Chapter 3, MCA. That part implements Article II, Section 8 of the Montana Constitution, which provides for the public’s right to participate in government operations. However, when a word is defined in the code, that definition is applicable to other parts of the code except where the contrary is plainly indicated. Section 1-2-107, MCA; Department of Revenue v. Gallatin Outpatient Clinic (1988), 234 Mont. 425, 430, 763 P.2d 1128, 1131.

Agency is defined in § 2-3-102, MCA, as “any board, bureau, commission, department, authority, or officer of the state or local government authorized by law to make rules, determine contested cases, or enter into contracts ....” The City argues that neither Corey nor Haag is a board, bureau, commission, department, or authority. Further, neither is authorized to make rules, determine contested cases, or enter into contracts. KTVQ does not dispute these assertions and, indeed, the record before us is clear that Corey and Haag are City employees who are not authorized to make rules, determine contested cases or enter into contracts. We conclude, therefore, that Montana’s open meeting statutes do not require the meeting between Corey, Haag and private persons to be open to the public.

The question remains, then, whether the statutes enacted by the Montana legislature to implement the public’s constitutional right to observe the deliberations of public bodies or agencies are unduly restrictive of that right. If so, those statutory interpretations will not be elevated over the protection found within the Constitution. Lacy, 780 P.2d at 188. Based on a careful review of the constitutional history, we must conclude that the statutory definition of agency is not restrictive of the public’s right to observe deliberations of public bodies and agencies as contained in Article II, Section 9 of the Montana Constitution.

The constitutional history reveals that Delegate Dorothy Eck introduced what ultimately became Article II, Section 9 of the Montana Constitution. Delegate Eck’s proposal, denominated Delegate Proposal No. 57, provided in pertinent part:

No person shall be deprived of the right to ... observe the actions and deliberations of all public officials or agencies ....

Montana Constitutional Convention 1971-72, Volume I, p. 157. It is clear that Proposal No. 57 was very broad in scope. It applied to actions and deliberations of all public officials and agencies (emphasis added).

Delegate Eck’s proposal was not adopted. Instead, the Bill of Rights Committee proposed Section 9, Right to Know, as it was finally passed by the Constitutional Convention and the people of Montana. Montana Con. Con., Vol. II, p. 621. There it was narrowed from the original scope so that it no longer applied to “actions” — even actions of public agencies; nor did it include any reference to “public officials” or any other individuals.

Referring again to the constitutional history, we are given significant insight into precisely what the constitutional framers intended when utilizing the term “public agency” in Article II, Section 9. We note here for clarity that the floor debate in the Constitutional Convention on Article II, Section 8, preceded the argument on Article II, Section 9, and that as a result most of the debate over the term “public agencies” is covered in that portion of the Convention transcripts.

The following remarks exemplify the thrust of the debate on “governmental agencies”:

DELEGATE DaHOOD: ... I ... urge all of the delegates to look at the term “governmental agencies”, which is the key to constructing that particular section.... Once again, I want to point out, we have in mind the governmental agencies that are miniature legislatures who put together rules and regulations that affect us all.

Montana Con. Con., Vol. V, p. 1664.

DELEGATE McNEIL: ... I think ... [governmental agencies] is what the committee intended to reach with this, and that is appointive commissions, bureaus, so forth ....
DELEGATE DaHOOD: ... [Governmental agencies that are not elected, that are appointed, that function to carry out the laws that are passed, are the ones, of course, that will enact rules and regulations and make the decisions that affect people ....

Montana Con. Con., Vol. V, p. 1667.

Nothing in these floor debate comments and explanations suggests that there was any intent to make “public agencies” synonymous with individual public employees. It is obvious from these and other remarks that the framers of the Constitution were concerned with governmental entities which had rule-making authority and regulatory powers.

This intent is even more clear when the Bill of Rights Committee’s comments on Article II, Section 9, are considered. The Committee specifically cited with approval then-existing § 82-3401, RCM (1947), which states that the legislative intent regarding open meetings; namely “that actions and deliberations of all public agencies shall be conducted openly.” Montana Con. Con., Vol. V, p. 1670. Section 82-3401, RCM (1947), subsequently recodified as § 2-3-201, MCA, also contained the legislative declaration of open meeting laws — as they existed both before and after the passage of the 1972 Constitution — applied to “public boards, commissions, councils, and other public agencies.” These are the kind of agencies that the delegates at the Montana Constitutional Convention included in Article II, Section 9.

We hold that, with regard to the meeting at issue here, Montana’s open meeting statutes do not restrict the public’s constitutional right to know. As a result, we hold that the District Court erred in ruling that Article II, Section 9 of the Montana Constitution requires that a meeting involving the Billings Public Works Director, the City Engineer, and individuals representing a private contractor and a private engineering company be open to the public. This opinion does not address, and shall not be construed as interpreting, the public’s right to examine documents as provided for in Article II, Section 9 of the Montana Constitution.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, McDONOUGH and WEBER concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

Article II, Section 9, of the Montana Constitution, is clear and self-executing. It does not require resorting to the extrinsic methods of construction relied on by the majority. It provides that:

No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure. [Emphasis added].

In this case, two members of the City’s public works department, the city engineer and the public works director, met with representatives of corporations with whom the City had contracted to discuss and resolve problems that had arisen during the construction of North 27th Street in the City of Billings. Local governments can only act through their employees, and the city engineer and public works director clearly represented the public works department which was an agency of the City of Billings. A public agency is “[a] department or agency of government which has official or quasi official status.” Black’s Law Dictionary 1227 (6th ed. 1990). A public agent is “[a]n agent of the public, the state, or the government; a person appointed to act for the public in some matter pertaining to the administration of government or the public business.” Black’s at 64. Ken Haag and Kurt Corey were clearly public agents acting on behalf of a public agency when they attended the meeting that KTVQ sought to observe and record.

Furthermore, deliberations are defined as “[t]he act of weighing and examining the reasons for and against a contemplated act or course of conduct or a choice of acts or means.” Black’s at 427. To deliberate means “[t]o weigh, ponder, discuss, regard upon, consider.” Black’s at 426. It is clear that Haag and Corey were engaged in government deliberations when they met with these contractors to resolve problems that had arisen on this construction project.

The majority opinion ignores the plain language of Article II, Section 9, Montana Constitution, in favor of suggestions from the convention history that what it states is not really what it means. However, this form of construction clearly flies in the face of our previous decisions, hi Associated Press v. Board of Education (1991), 246 Mont. 386, 804 P.2d 376, which was reaffirmed in Great Falls Tribune v. Great Falls Public Schools (1992), 255 Mont. 125, 841 P.2d 502, we held that:

The language of [Article II, Section 9] speaks for itself. It applies to all persons and all public bodies of the state and its subdivisions without exception. Under such circumstances, it is our duty to interpret the intent of the framers from the language of the provision alone and not resort to extrinsic aids or rules of construction in determining the intent of the delegates to the Constitutional Convention.

Associated Press, 804 P.2d at 379.

What was prohibited by our decision in Associated Press is exactly what was done in this case. How can the two approaches be reconciled?

Furthermore, although there is extensive discussion of the definition of “agency” set forth in Montana’s open meeting laws, that definition is irrelevant. Any statutory definition which limits the scope of a constitutional provision is unconstitutional. As we stated in In re Lacy v. City of Billings (1989), 239 Mont. 321, 325, 780 P.2d 186, 188:

While the legislature is free to pass laws implementing constitutional provisions, its interpretations and restrictions will not be elevated over the protections found within the Constitution.

Here, the statutory definition of agency clearly limits the plain and common interpretation that is required by our prior decisions.

The majority decision is a substantial blow to the public’s right to know guaranteed by our State Constitution. It allows public agencies and their officers to conduct public business in secret and without public scrutiny. This is not in the public’s interest and is exactly what our constitutional right to know was designed to prevent.

Neither can any public policy reason be constructed for denying members of the media the opportunity to observe this agency’s meeting with other members of the public in a nondisruptive way. There is no serious argument which can be made that the public interest is better served by keeping from the citizens of Billings the most direct information of how their affairs are being handled.

Therefore, I dissent from the majority opinion. I would affirm the District Court’s conclusion that when members of the news media were excluded from this meeting between members of the Billings public works department and contractors with whom it did business, that Montana’s open meeting law found at Article II, Section 9, of the Montana Constitution was violated. However, because it was necessary to bring this court action to enforce that constitutional right, I believe that attorney fees should have been recoverable under § 2-3-221, MCA, and I would have reversed the District Court’s decision to deny those fees.

JUSTICE HUNT joins in the foregoing dissent.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    DONNA MARRY, Plaintiff and Appellant, v. MISSOULA COUNTY SHERIFF’S DEPARTMENT AND COUNTY OF MISSOULA, Defendant and Respondent.
    No. 93-323.
    Submitted on Briefs September 30, 1993.
    Decided December 28, 1993.
    50 St.Rep. 1751.
    263 Mont. 152.
    866 P.2d 1129.

      For Plaintiff and Appellant: Robert K. Ogg, Grenfell & Ogg, Missoula.
    For Defendant and Respondent: Michael W. Sehestedt, Deputy Missoula County Attorney, Missoula.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Appellant Donna Marry (Marry) appeals the Fourth Judicial District Court, Missoula County, order which amended its original findings of fact and conclusions of law in response to Maury’s motion for new trial and amendment of judgment. We reverse and remand.

The issue is whether the District Court abused its discretion by amending a finding of fact solely to support a conclusion of law, which barred Marry from recovering damages.

This case involved a motor vehicle accident between Marry and a Deputy Sheriff of the Missoula County Sheriff’s Department. The parties disputed liability; each party contended that the other was negligent per se.

The District Court heard the case without a jury and entered its original findings of fact and conclusions of law on March 19, 1993. Finding of Fact No. 7 read:

The collision was caused equally by [Many's] failure to yield the right of way and by [the] Deputy ... [who] exceeded] the speed limit.

Conclusion of Law No. 6 read:

The negligence of [Marry] and the negligence of [the Deputy] ... contributed equally to the accident barring recovery by either party. § 27-1-701 MCA [sic].

The court ordered that judgment be entered in favor of defendants with each party to pay their own costs.

On April 1, 1993, Marry moved the court to make additional findings of fact concerning her damages. She also moved the court for a new trial or in the alternative to amend Conclusion of Law No. 6 to conform with § 27-1-702, MCA. Marry argued that Finding of Fact No. 7 established that the parties were equally negligent and, thus, the clear mandate of § 27-1-702, MCA, required the District Court to amend Conclusion of Law No. 6 to entitle Marry to recover fifty percent of the damages she sustained in the accident.

In response to Marry’s motion for new trial and amendment of judgment, the District Court, on May 6,1993, entered an opinion and order. In that opinion and order, the court admitted that, given the facts, Conclusion of Law No. 6 was not consistent with Montana law on contributory negligence. See § 27-1-702, MCA. The court stated:

It was the intent of the [cjourt that [Marry] take nothing in this action. The [c]ourt’s finding of “equal” negligence allows for a recovery on the part of [Marry], That was not the [c]ourt’s intent.

The court then amended Finding of Fact No. 7:

The collision was primarily caused by [Marry’s] failure to yield the right of way, and secondarily by [the] Deputy ... [who] exceed[ed] the speed limit.

Further, Conclusion of Law No. 6 was amended to read:

The negligence of [Marry] being greater than the negligence of the Defendant, [Marry] is not entitled to recovery. § 27-1-701 MCA [sic].

The court also denied Marry’s motion for a new trial. Marry appeals the court’s decision to amend Finding of Fact No. 7.

Usually we will uphold a district court’s findings of fact if substantial credible evidence supports those findings. Emcasco Ins. Co. v. Waymire (1990), 242 Mont. 131, 135, 788 P.2d 1357, 1360; Robinson v. Schrade (1985), 215 Mont. 326, 328, 697 P.2d 923, 925. However, when, as here, a district court amends a finding of fact to support a conclusion of law, we will review whether the district court abused its discretion. See Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

Marry maintains that the District Court abused its discretion by failing to follow the mandate of Rule 52(a) and (b), M.R.Civ.P., which require the court to find the facts first and then base its conclusions of law on those facts and to only amend its findings after reviewing the evidence in the record. Marry argues, and we agree, that the District Court amended Finding of Fact No. 7 solely to support Conclusion of Law No. 6 which prohibited her from recovering damages.

Rule 52(a), M.R.Civ.P., requires the district court to “find the facts specially and state separately its conclusions of law thereon....” Rule 52(b), M.R.Civ.P., states that “the [district] court may amend its findings or make additional findings and may amend its judgment accordingly.” The court must, however, review the evidence in the record before amending its findings. See Ring v. Hoselton (1982), 197 Mont. 414, 422, 643 P.2d 1165, 1170. Read in conjunction, Rule 52(a) and (b), M.R.Civ.P, compel the district court to find the facts first and review the record prior to amending its findings of fact. Rule 52(a), M.R.Civ.P., also requires the court to base its conclusions of law on the facts that it finds.

Initially, here, the District Court found that Marry and the Deputy were equally responsible for the collision. The court then erroneously concluded that neither party could recover damages under § 27-1-702, MCA. Following Marr/s motion for a new trial and amendment of judgment, the court admitted that Conclusion No. 6 was not consistent with Montana law and that Finding No. 7 did not support the result it desired to achieve. Thus, the court amended Finding No. 7 and Conclusion No. 6 in its opinion and order. The court clearly noted that its intent in amending Finding No. 7 was to prevent Marry from recovering damages.

The District Court did not, as required by Rule 52(b), M.R.Civ.P., review the evidence in the record when it amended Finding of Fact No. 7. In fact, the court, in its order, failed to state that it reviewed the evidence and determined that Finding of Fact No. 7 was incorrect. Instead, the District Court amended Finding No. 7 because it desired to preclude Marry from recovering damages.

Moreover, we note that both the original and amended Conclusion No. 6 dictated that Marry was barred from recovering damages. The District Court did not find the facts first, as required by Rule 52(a) M.R.Civ.P. Instead, the court fashioned a conclusion of law which barred Marry from recovering damages and then found facts to support that conclusion. We hold that the District Court abused its discretion when it arbitrarily, without reviewing the record, formed the facts to fit its already-fashioned conclusion of law.

We reverse and remand this case to the District Court with instructions to reinstate original Finding of Fact No. 7 and to amend Conclusion of Law No. 6 so that it is consistent with Montana law. Further, the District Court is directed to make findings as to Many’s damages and enter judgment in favor of Marry to recover half of her damages.

Reversed and remanded with instructions.

JUSTICES GRAY, TRIEWEILER, HUNT and WEBER concur.


author: JUSTICE GRAY

text:
    BANKERS LIFE & CASUALTY CO., Petitioner and Appellant, v. LEA PETERSON, LORILI BARNETT, KRISTI WOLF, DIANE CHAIDEZ and MONTANA HUMAN RIGHTS COMMISSION, Respondents and Respondents.
    No. 93-363.
    Submitted on November 30, 1993.
    Decided December 28, 1993.
    50 St.Rep. 1753.
    263 Mont. 156.
    866 P.2d 241.

      For Petitioner and Appellant: Tom K. Hopgood, Luxan & Murfitt, Helena.
    For Respondents and Respondents: Peter M. Meloy, Meloy Law Firm, Helena; David Rusoff, Montana Human Rights Commission, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

In a case of first impression, the issue before this Court is whether an individual major medical expense insurance policy that excludes coverage for normal pregnancy and childbirth violates § 49-2-309, MCA. Unique to Montana, § 49-2-309, MCA, prohibits discrimination based solely on sex in the issuance, operation, coverage, rates or premiums of any type of insurance policy. The First Judicial District Court, Lewis and Clark County, affirmed a determination by the Montana Human Rights Commission (the Commission) that the policy issued by Bankers Life and Casualty Co. (Bankers Life) unlawfully discriminated against female policyholders. We affirm the District Court.

Bankers Life is an insurance company authorized to do business in Montana. Lorili Barnett, Lea Peterson, Kristi Wolf and Diane Chaidez (collectively the Charging Parties), in separate transactions, purchased a “Major Medical Expense Policy” from Bankers Life. The policies contained the following provisions at issue in this case:

BENEFIT PROVISIONS — We’ll pay covered expenses incurred by a family member due to injury, sickness or mental illness.
EXCEPTIONS — This policy does not cover expenses for:
(13) Normal pregnancy and childbirth. Complications of pregnancy expenses are covered as a sickness.

In conjunction with this policy, Bankers Life offered an optional Maternity Benefits Rider which would provide coverage for normal pregnancy and childbirth expenses. The Charging Parties did not purchase the Maternity Benefits Rider.

The Charging Parties subsequently gave birth and submitted their normal maternity expenses to Bankers Life; Bankers Life denied coverage for those expenses. Pursuant to § 49-2-309, MCA, each of the Charging Parties filed a complaint with the Commission, alleging ■unlawful sex discrimination in an insurance policy. The four cases were consolidated and a hearing was held on January 24, 1992. The Commission issued its Findings of Fact, Conclusions of Law and Order on April 17, 1992, determining that Bankers Life had unlawfully discriminated against the Charging Parties by excluding coverage and denying benefits for normal maternity expenses.

Bankers Life petitioned the District Court for judicial review of the Commission’s decision on May 8, 1992. The State of Montana, on behalf of the Commission, was granted leave to intervene in the action. After oral argument, the District Court issued its decision and order on May 19, 1993, determining that, because pregnancy occurs only to women, any classification which relies on pregnancy as the determinative criterion is a distinction based on sex. Because Bankers Life’s policy excluded benefits for pregnancy and childbirth, the court concluded that the policy unlawfully discriminated against female policyholders in violation of § 49-2-309, MCA.

The parties agree that only issues of law are before this Court. Therefore, our standard of review is whether the District Court’s interpretation of the law is correct. Mooney v. Brennan (1993), 257 Mont. 197, 199, 848 P.2d 1020, 1022. Thus, we focus on the District Court’s interpretation of § 49-2-309, MCA, in light of the agreed facts. The legal issues before us are whether § 49-2-309, MCA, prohibits discrimination on the basis of pregnancy in a major medical expense insurance policy and, if so, whether the Bankers Life policies at issue violate the statute.

1) Does § 49-2-309, MCA, prohibit discrimination on the basis of pregnancy in a major medical expense insurance policy?

The District Court concluded that discrimination on the basis of pregnancy constitutes discrimination on the basis of sex, relying on Massachusetts Elec. Co. v. Massachusetts Comm’n Against Discrimination (Mass. 1978), 375 N.E.2d 1192, 1198. As a result, the court concluded that § 49-2-309, MCA, prohibits discrimination on the basis of pregnancy. On appeal, Bankers Life contends that this conclusion is erroneous as a matter of law.

This Court has not interpreted § 49-2-309, MCA, since its passage in 1983. The statute, which is sometimes referred to as Montana’s “unisex” insurance statute, provides in pertinent part:

Discrimination in insurance and retirement plans. (1) It is an unlawful discriminatory practice for any financial institution or person to discriminate solely on the basis of sex or marital status in the issuance or operation of any type of insurance policy, plan, or coverage or in any pension or retirement plan, program, or coverage, including discrimination in regard to rates or premiums and payments or benefits.

Section 49-2-309, MCA, has no federal or sister-state counterpart. Thus, federal cases and cases from other states interpreting anti-discrimination statutes in different scenarios are not binding on this Court. Indeed, even the Montana cases discussed below involved different sections of the Montana Human Rights Act.

Bankers Life relies on General Electric Co. v. Gilbert (1976), 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343, and its limited progeny, to support the assertion that pregnancy-related distinctions do not constitute sex discrimination. Gilbert held that an employee disability benefit plan which excluded benefits for pregnancy did not unlawfully discriminate on the basis of sex in violation of Title VII of the 1964 Human Rights Act, 42 U.S.C. 2000e-2(a)(l) (Title VII). Gilbert, 420 U.S. at 135, 97 S.Ct. at 407, 50 L.Ed.2d at 353. Although the language in Gilbert appears to support Bankers Life’s position, Gilbert is not controlling authority for numerous reasons.

First, the United States Supreme Court’s interpretation of the federal statute prohibiting sex discrimination in employment is not binding on this Court’s interpretation of Montana’s unisex insurance statute. See North v. Bunday (1987), 226 Mont. 247, 254, 735 P.2d 270, 275. Moreover, Congress effectively overruled Gilbert by passing the Pregnancy Discrimination Act, which amended Title VII to specifically include pregnancy as a basis of unlawful discrimination in matters of employment. 42 U.S.C. 2000e(k). Following the passage of the Pregnancy Discrimination Act, the United States Supreme Court stated that Congress had overruled Gilbert and unequivocally held that discrimination based on a woman’s pregnancy is, on its face, discrimination because of her sex. Newport News Shipbuilding & Dry Dock Co. v. EEOC (1983), 462 U.S. 669, 684, 103 S.Ct. 2622, 2632, 77 L.Ed.2d 89, 103.

Most importantly, like the majority of state courts, this Court refused to follow Gilbert. See Mountain States Telephone v. Comm’r of Labor (1980), 187 Mont. 22, 608 P.2d 1047. As we stated in Mountain States:

[m]ountain Bell’s position fails to take into account the rather checkered history of Gilbert, including the recent significant addition to Title VII demonstrating a contrary congressional intent, and the cases decided after Gilbert, demonstrating a consistent refusal on the part of the majority of the courts to follow Gilbert.

Mountain States, 608 P.2d at 1055. We decline to follow Gilbert in this case and, indeed, consider Montana law sufficient to resolve this issue.

In Mountain States, this Court determined that distinctions based on pregnancy are sex-linked classifications. Although we were primarily concerned with the question of federal preemption of the Montana Maternity Leave Act, §§ 49-2-310 and -311, MCA, we stated that:

[pjregnancy is a condition unique to women, and the ability to become pregnant is a primary characteristic of the female sex. Thus, any classification which relies on pregnancy as the determinative criterion is a distinction based on sex ... By definition, [placing pregnancy in a class by itself] discriminates on account of sex; for it is the capacity to become pregnant which primarily differentiates the female from the male.

Mountain States, 608 P.2d at 1056 (citations omitted). Citing Massachusetts Elec., we stated that the exclusion of pregnancy-related disabilities from a comprehensive disability plan constituted sex discrimination in employment. Mountain States, 608 P.2d at 1056.

In 1984, we reaffirmed the principle that differential treatment of pregnancy is gender-based discrimination because only women can become pregnant. Miller-Wohl Co., Inc. v. Comm’r of Labor (1984), 214 Mont. 238, 254, 692 P.2d 1243, 1251. Again, the primary issue in that case was one of federal preemption. However, in Miller-Wohl, we determined that an employer’s sick leave policy created a disparate effect on women who became pregnant compared to men who did not. Although the policy was facially neutral, it nonetheless subjected women to job termination on a basis not faced by men. We concluded, therefore, that the policy was gender-based discrimination. MillerWohl, 692 P.2d at 1052.

Mountain States and Miller-Wohl established that differential treatment of pregnancy constitutes sex discrimination in Montana. Section 49-2-309, MCA, prohibits sex discrimination in the operation, coverage, pricing and benefits of an insurance policy. We conclude, therefore, that § 49-2-309, MCA, prohibits discrimination based on pregnancy in a major medical expense insurance policy. The plain language of § 49-2-309, MCA, and our previous holdings in Mountain States and Miller-Wohl, amply support our conclusion.

We note, moreover, that the majority of courts considering the issue of whether distinctions based on pregnancy constitute sex discrimination under statutes involving both employment and non-employment situations have reached similar conclusions. For example, in Civil Rights Comm’n v. Travelers Ins. Co. (Colo. 1988), 759 P.2d 1358, an employer provided a comprehensive group medical insurance policy as a benefit to its employees; the policy excluded coverage for medical expenses resulting from normal pregnancy but covered complications arising from pregnancy. The Colorado Supreme Court, en banc, concluded that the policy violated a Colorado statute prohibiting sex discrimination in matters of employment compensation. Travelers, 759 P.2d at 1361. Also, in Kirsh v. State Farm Mut. Auto Ins. Co. (Cal.App. 1991), 284 Cal.Rptr. 260, 266, the California Court of Appeals concluded that an insurance company violated the Unruh Act, which prohibits sex discrimination in all “business establishments,” by failing to cover pregnancy-related expenses in an insurance policy. Additionally, in Binghamton Cr. Un. v. Div. of Human Rights (N.Y.App. 1990), 564 N.E.2d 1051,1054, the New York Court of Appeals determined that a disability insurance policy that excluded benefits for pregnancy and was offered in conjunction with an automobile loan was discriminatory because a woman could not obtain credit on the same terms as a man.

Although the great weight of authority supports the District Court’s determination that § 49-2-309, MCA, prohibits discrimination based on pregnancy, Bankers Life argues that the legislature did not intend § 49-2-309, MCA, to encompass pregnancy-related distinctions. It asserts that the 1991 Legislature’s failure to pass House Bill 388, which would have added specific language including pregnancy distinctions as sex discrimination to § 49-2-309, MCA, and its enactment of §§ 33-22-1201, MCA, et seq., demonstrate legislative intent that § 49-2-309, MCA, does not include pregnancy-based discrimination. Bankers Life cites no relevant authority or legislative history to support either assertion.

Section 49-2-309, MCA, is clear and unambiguous; it prohibits discrimination based on sex in insurance policies. Thus, no further interpretation is necessary. GBN, Inc. v. Montana Dep’t of Revenue (1991), 249 Mont. 261, 265, 815 P.2d 595, 597. In any event, the legislature’s failure to enact a proposed amendment is of little value in interpreting legislative intent because an amendment may be defeated for many reasons. In re Matter of W.J.H. (1987), 226 Mont. 479, 484, 736 P.2d 484, 487. Furthermore, §§ 33-22-1201, MCA, et seq., merely authorized the Insurance Commissioner (Commissioner) to issue “limited benefit disability insurance” policies, which are exempt from certain premium taxes. Sections 33-22-1202 and -1205, MCA. Those polices are statutorily required to contain maternity benefits. Section 33-22-1203, MCA. Bankers Life has not demonstrated how the passage of this provision of the insurance code, seven years after the passage of the anti-discrimination statute, reflects any legislative intent regarding the unisex statute.

Bankers Life also argues that, because the unisex statute does not specifically refer to discrimination based on pregnancy, this Court is not free to insert such terms. On that basis, Bankers Life asserts that we are prohibited from concluding that an exclusion for expenses for normal pregnancy and childbirth in a major medical expense policy violates § 49-2-309, MCA.

Section 1-2-101, MCA, which precludes courts from “adding” or “inserting” language into a statute, has no bearing here because we do not add anything to § 49-2-309, MCA, by our decision today. Section 49-2-309, MCA, is clearly intended to cover all discriminations in insurance policies that are based solely on sex. As is usually the case, the legislature declined to enumerate all conceivable varieties of sex discrimination, but rather left the interpretation and application of this general anti-discrimination statute to the courts. Our task is merely to interpret § 49-2-309, MCA, to determine whether distinctions based on normal pregnancy and childbirth constitute discrimination on the basis of sex.

We conclude that discrimination on the basis of pregnancy is discrimination on the basis of sex and is, therefore, prohibited by the Montana -unisex insurance statute.

2) Do the major medical expense insurance policies issued by Bankers Life, which exclude expenses for normal pregnancy and childbirth, violate § 49-2-309, MCA?

The District Court concluded that the exclusion of normal pregnancy and childbirth expenses from Bankers Life’s policies violated § 49-2-309, MCA, reasoning that pregnancy is a physical condition requiring medical attention and the exclusion of maternity expenses imposes a hardship on women not imposed on men. On appeal, Bankers Life’s primary argument is that its policy covers expenses only for “sickness, injury or mental illness” and that a normal pregnancy does not qualify as a sickness or injury. It asserts, therefore, that the policy does not discriminate solely on the basis of sex; rather, it argues that the determinative classification is based on the fact that pregnancy is not a “sickness.”

We rejected a similar argument in Mountain States. There, the employer argued that normal pregnancy was not a typically covered “disease or disability” and, therefore, that the Montana Maternity Leave Act’s protection for women “disabled because of pregnancy” did not apply to normal pregnancies. This Court disagreed, and affirmed the district court’s conclusion that normal pregnancy resulted in an “inability to pursue an occupation because of physical impairment” and thus was covered by the Act. Mountain States, 609 P.2d at 1062. The argument was also rejected in Travelers, where the Colorado Supreme Court stated that pregnancy is a natural incident of adult life requiring medical attention, and the purpose of health insurance is to defray costs of needed medical treatment. Travelers, 759 P.2d at 1364. As stated by the District Court, pregnancy is a physical condition which requires medical attention, regardless of whether it is technically classified as a sickness.

In sum, Bankers Life’s major medical insurance policy excludes a significant major medical expense for women, a hardship which is not imposed on men. Thus, while men are — at least on the face of this policy — provided comprehensive coverage for major medical expenses, including male-specific conditions, women are not provided similar protection. See Quaker Oats Co. v. Cedar Rapids Human Rights Comm’n (Iowa 1978), 268 N.W.2d 862, 864 and Massachusetts Elec., 375 N.E.2d at 1198. We conclude that this disparity of treatment is, on its face, sex discrimination in violation of § 49-2-309, MCA.

Bankers Life also argues that, because its policy is not “comprehensive,” Travelers and other cited cases are distinguishable. This distinction is without import. Section 49-2-309, MCA, prohibits gender-based discrimination in all insurance policies. Regardless of whether Bankers Life’s policy is technically classified as “comprehensive” or “major medical,” discrimination on the basis of sex is proscribed by statute. In any event, if such a distinction exists other than as semantics, Bankers Life failed to make a record upon which either the Commission, the District Court, or this Court could so rule.

As an alternative approach, Bankers Life contends that covering normal pregnancy and childbirth expenses will constitute reverse discrimination against men because men will pay premiums for benefits that only women receive. We disagree.

Rejecting a similar argument, the Colorado Supreme Court stated that:

[ajlthough the risk of one class may not be precisely the same as the risks of the other class, an insurance policy which provides benefits comprehensively to males and females for medical conditions to which each class is separately subject cannot be deemed to discriminate against either class on the basis of sex.

Travelers, 759 P.2d at 1364. The same holds true here. The only gender specific exclusion in the policy at issue is the pregnancy exclusion; no male gender-specific exclusions are listed. Absent male gender-specific exclusions in Bankers Life’s policy, women are paying premiums for benefits only men receive. As noted in Miller-Wohl, treating pregnancy on an equal basis with other medical conditions merely places men and women on more equal terms. Miller-Wohl, 692 P.2d at 1254.

As a final matter, Bankers Life argues that the Montana Commissioner of Insurance is required by § 33-1-502(5), MCA, to review all policies for compliance with § 49-2-309, MCA, and withdraw approval if a policy violates the unisex insurance statute. Bankers Life asserts that, because the Commissioner approved the policies at issue, it is entitled to rely on that approval. This argument is without merit.

First, Bankers Life’s policies were approved prior to the passage of § 33-1-502(5), MCA, by the 1991 Legislature; at the time of that approval, the Commissioner had no duty to review the policies for violations of § 49-2-309, MCA. We also note that this argument is somewhat inconsistent with the following provision in Bankers Life’s policy:

Any provision of this policy which, on its effective date, is in conflict with the laws of the state in which you live on that date is amended to conform to the minimum requirement of such laws.

As set forth above, § 49-2-309, MCA, was enacted in 1983. The Charging Parties purchased their Bankers Life policies subsequent to October 1, 1985, while the unisex statute was in full force and effect. Pursuant to the policies themselves, then, the policies were automatically “amended” to conform to the requirements of § 49-2-309, MCA. Even absent such a provision in the policy itself, it is well established that provisions in insurance statutes are to be read into an insurance policy as though written therein. Sagan v. Prudential Ins. Co. (1993), 259 Mont. 506,_, 857 P.2d 719, 721.

Bankers Life’s policy excludes normal pregnancy and childbirth expenses from coverage, thus entitling women to fewer benefits in a major medical expense insurance policy because of their sex. We conclude that this differential treatment based on sex is discriminatory on its face. Therefore, we hold that the major medical expense insurance policies purchased by the Charging Parties from Bankers Life violate § 49-2-309, MCA, by unlawfully discriminating on the basis of sex.

Affirmed.

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


author: CHIEF JUSTICE TURNAGE

text:
    IN RE THE PETITION OF WALTER JAMES MANULA
    No. 93-517.
    Dated December 28, 1993.
    50 St.Rep. 1758.
    263 Mont. 166.
    866 P.2d 1127.
   OPINION AND ORDER

CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

James Manula (Petitioner) has filed herein his petition for post-conviction relief. He claims, among other things, that he was denied his right to an appeal. We disagree, and conclude that ruling is also dispositive of Ms other claims for postconviction relief. Petitioner’s petition presents an issue of first impression in Montana.

Background

In August 1990, Petitioner was charged by information in Beaver-head County Cause No. DC 90-2355 with one count of sexual intercourse without consent and one count of aggravated kidnapping, both felomes alleged to have been committed on or about August 16,1990. Petitioner appeared in court with appointed counsel, pled not guilty to those charges and was released on bond.

WMle free on bond, Petitioner committed and was charged in Beaverhead County Cause No. DC 90-2364 with other felomes including sexual intercourse without consent, incest, aggravated kidnapping and criminal mischief. Petitioner appeared with the same appointed counsel and pled not gmlty to those charges m October 1990. Petitioner stood trial on those charges in July 1991, and was found guilty on all counts by a jury.

Prior to sentencing in Cause No. DC 90-2364, Petitioner entered Mto a plea agreement with the State in order to dispose of the outstanding charges m Cause No. DC 90-2355. The State agreed to recommend specific sentences in both causes of action m exchange for Petitioner’s agreement not to pursue a direct appeal of Ms jury convictions in Cause No. DC 90-2364 and in consideration for Ms agreement to abide by various other reqMrements and conditions attendant to Ms incarceration and following Ms release on parole.

As a part of the plea agreement, Petitioner executed an “Acknowledgement of Waiver of Rights” form setting forth the agreed-upon terms and the specific rights wMch Petitioner was waiving by entering mto the plea agreement. The plea agreement also contained Petitioner’s handwritten “Alford” plea to the charges in Cause No. DC 90-2355: “I believe the State can obtain a guilty verdict from a jury.”

In October 1991, Petitioner, appearing with counsel, changed Ms plea to guilty to the charges in Cause No. DC 90-2355. Following a sentencing hearing, the District Court adopted the terms of the plea agreement and sentenced Petitioner on both causes of action to 40 years’ imprisonment with 20 years suspended, non-dangerous. The District Court specifically noted that, in accordance with the plea agreement, Petitioner was waiving his right to appeal, although he was not barred from pursuing sentence review.

On October 14, 1993, Petitioner filed tMs petition for postconviction relief alleging, among other tMngs, demal of Ms right to appeal, ineffective assistance of counsel, illegal incarceration prior to being charged, lack of evidence and other claims arising out of his jury convictions in Cause No. DC 90-2364.

7. Denial of Appeal

Petitioner alleges that he was denied his right of appeal by reason of the failure of his attorney to file an appeal. That is not the case, however. Here, Petitioner, as a part of his plea agreement, specifically and in writing, waived his right to appeal.

While an issue of first impression in Montana, other federal and state courts have adopted the rule that, as with other rights which are waived upon entry of a guilty plea, a defendant’s waiver of his right to appeal will not be invalidated so long as his waiver of that right is done intelligently, voluntarily and with an understanding of the consequences. See, for example, United States v. DeSantiagoMartinez (9th Cir. 1992), 980 F.2d 582, citing United States v. Bolinger (9th Cir. 1991), 940 F.2d 478, 480, and United States v. NavarroBotello (9th Cir. 1990), 912 F.2d 318, 319, 321-22, cert. denied,_ U.S._, 112 S.Ct. 1488, 117 L.Ed.2d 629 (1992); United States v. Wiggins (4th Cir. 1990), 905 F.2d 51; Barnes v. Lynaugh (5th Cir, 1987), 817 F.2d 336; Johnson v. United States (7th Cir. 1988), 838 F.2d 201; People v. Nichols (1986), 143 Ill.App.3d 673, 97 Ill.Dec. 870, 493 N.E.2d 677; State v. Perkins (1987), 108 Wash.2d 212, 737 P.2d 250; People v. Olson (1989), 216 Cal.App.3d 601, 264 Cal. Rep. 817; People v. Seaberg (1989), 74 N.Y.2d 1, 543 N.Y.S. 2d 968, 541 N.E.2d 1022; People v. Rodriguez (1991), 192 Mich.App. 1,480 N.W.2d 287; and the cases collected at 89 ALR 3d 864.

In the instant case, the record reflects that Petitioner was well aware that he was forfeiting his right of appeal by executing the plea agreement. Not only did the Acknowledgement of Waiver of Rights form which he signed specifically waive his “...right to appeal any finding of Guilty ...,” but the Beaverhead County Attorney’s letter offering the plea agreement, attached to the Acknowledgement of Waiver of Rights form, also unequivocally made Petitioner’s waiver of appeal of his convictions under Cause No. DC 90-2364 a condition for the State’s entry into the agreement.

Furthermore, at the sentencing hearing the District Court made specific inquiry of Petitioner’s counsel regarding the appeal waiver, and counsel advised that he had thoroughly discussed the pros and cons of the waiver with his client.

We conclude that Petitioner’s waiver of his right to appeal in this case conforms with the voluntary, intelligent and understanding appeal waiver found and upheld by the Ninth Circuit in DeSantiago: the agreement signed by the defendant contained an express waiver of the right of appeal, and the record reflects that the waiver was discussed by the defendant with his counsel.

Accordingly, we hold that Petitioner, here, effectively waived his right of direct appeal.

II. Procedural Bar of Other Postconviction Claims

From Petitioner’s waiver of his right of direct appeal, it follows that his other claims for postconviction relief are procedurally barred.

Section 46-21-105(2), MCA, provides:
When a petitioner has been afforded a direct appeal of the petitioner’s conviction, grounds for relief that could reasonably have been raised on direct appeal may not be raised in the original or amended petition.

We have applied that statutory bar consistently in order to prevent the abuse of postconviction relief by criminal defendants who would substitute those proceedings for direct appeal and in order to preserve the integrity of the trial and direct appeal. See, for example, In re the Petition of Evans (1991), 250 Mont. 172, 819 P.2d 156; Tecca v. McCormick (1990), 246 Mont. 317, 806 P.2d 11; State v. Gorder (1990), 243 Mont. 333, 792 P.2d 370; Duncan v. State (1990), 243 Mont. 232, 794 P.2d 331; In re Petition of Martin (1989), 240 Mont. 419, 787 P.2d 746.

Here, Petitioner was afforded the right of direct appeal, and he voluntarily waived that right in his written plea agreement. Accordingly, we hold that he is procedurally barred under § 46-21-105(2), MCA, from raising his various other claims for postconviction relief.

ORDER

IT IS HEREBY ORDERED that Petitioner’s petition for postconviction relief should be and the same is, hereby, DENIED.

Dated this 28th day of December, 1993.

J.A. TURNAGE, CHIEF JUSTICE

JOHN CONWAY HARRISON, JUSTICE

TERRY TRIEWEILER, JUSTICE

KARLA M. GRAY, JUSTICE

WILLIAM E. HUNT, SR, JUSTICE

JAMES C. NELSON, JUSTICE

FRED J. WEBER, JUSTICE


author: JUSTICE NELSON

text:
    IN RE THE MARRIAGE OF JUDITH A. BONAMARTE, Petitioner and Respondent, v. MARK J. BONAMARTE, Respondent and Appellant.
    No. 93-350.
    Submitted on Briefs November 5, 1993.
    Decided January 4, 1994.
    51 St.Rep. 1.
    263 Mont. 170.
    866 P.2d 1132.

      For Appellant: Donald E. White, Bozeman.
    For Respondent: Marcelle C. Quist, Quist Law Office, Bozeman.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from an Eighteenth Judicial District Court, Gallatin County, decision in a dissolution action. We reverse and remand for a new trial.

The dispositive issue on appeal is whether the petitioner was properly allowed to testify by telephone, over the objection of the respondent, at the hearing on the merits.

The petitioner, Judith Spillane (fZk/a Judith Bonamarte — Judith) and the respondent, Mark Bonamarte, (Mark) were married on April 29, 1990, in New Jersey but separated in June of 1991 when Judith obtained a temporary restraining order alleging physical and emotional abuse and threats of violence by Mark. Judith filed a petition for dissolution in July of 1991, and moved to New Jersey the following month, at which time she was six months pregnant.

There is one child of the marriage, Quentin Christopher Spillane (Quentin), bom on November 18,1991. Quentin has resided with his mother in New Jersey at all times. Mark continues to reside in Montana. The parties have agreed that Mark can exercise supervised visitation with Quentin in the state of New Jersey.

This dissolution action came before the Eighteenth Judicial District Court on February 4, 1993, but a portion of the trial was postponed until February 19,1993, when the trial court decided that Judith could testify from New Jersey via the telephone. The telephonic testimony occurred on February 19 over Mark’s objection. On March 22, 1993, the trial court issued its decision awarding sole custody of Quentin to Judith and ordering Mark to pay $310.59 per month for child support, plus arrearages. The court also concluded that Mark could not require that Quentin use his last name, Bonamarte, instead of Judith’s last name, Spillane.

Judith continues to fear Mark and for this reason, as well as the expense of traveling and her inability to find adequate child care for Quentin if she traveled to Montana, she made the request to testify by telephone at the hearing on the merits. It is upon the issue of the District Court’s allowing her telephonic testimony that the disposition of this case rests.

Our standard of review relating to discretionary court mlings is whether the court abused its discretion. Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 604.

Mark states that the hearing was originally scheduled for February 4,1993, but when Judith did not appear, the court continued the matter until February 19,1993, when it allowed Judith to testify by telephone from New Jersey over Mark’s objection. He argues that Judith was not placed under oath by a person authorized to administer oaths but that she was merely introduced by someone who claimed to be Judith’s supervisor and stated that she knew Judith. At that time, the Court administered the oath and Judith testified. Mark also reminds this Court that it was Judith who chose Montana as the forum for the dissolution.

Mark also argues that Judith was unable to testify as to matters that required documentary evidence to be considered by the court involving the parties’ income, assets and debts. He states that his counsel’s cross-examination of Judith concerning the parties’ accounts was difficult because the documents being discussed were not available for her perusal in New Jersey. He states that he could not fully cross-examine Judith because the testimony was by telephone.

Finally, Mark argues that “(Rule 611(e)), [M.R.Evid.], make[s] it absolutely clear that a party in all court proceedings (civil included) has a right to confrontation of witnesses and that a witness can only be heard in the presence of the Court and parties.” He concludes that “unless other arrangements had been previously made (such as a prior deposition) there was without question, a clear violation of the rule. The only remedy at this time would be to return the case for a new trial.”

Judith counters that she was afraid of Mark because of past domestic abuse and therefore did not want to return to Montana to testify. Also, she contends that she could not afford the expense of traveling to Montana nor could she find child care for her son and that for these reasons, she wished to testify by telephone from New Jersey, her current home.

Judith asserts that she did testify in the “presence” of her husband and that she was subject to examination by all parties to the action. Further, Mark did not dispute that it was Judith who testified over the telephone. Moreover, Rule 611(e) allows for exceptions to the rule, this case falls within those exceptions and the court has discretion to decide whether to permit telephonic testimony. Finally, Judith maintains that if the decision to allow telephonic testimony is error, it is harmless error because it did not affect the husband’s substantial rights.

Factually, this is a difficult case. It is hard to fault the District Judge who was obviously trying to make the best of a difficult situation and to accommodate Judith’s concerns and the logistical and financial problems associated with her personal appearance at trial. Given the law, however, we must, nevertheless, conclude that the trial court abused its discretion when it allowed Judith to testify by telephone over objection in lieu of personally appearing in court at the hearing on the merits. This error denied Mark a meaningful opportunity to confront the witness, Judith, and to conduct a proper cross-examination. This is more than harmless error and warrants reversal and remand for a new trial.

Discussion

Requiring a witness to testify personally at trial serves a number of important policies and purposes. A witness’ personal appearance in court:

1. assists the trier of fact in evaluating the witness’ credibility by allowing his or her demeanor to be observed firsthand;

2. helps establish the identity of the witness;

3. impresses upon the witness, the seriousness of the occasion;

4. assures that the witness is not being coached or influenced during testimony;

5. assures that the witness is not referring to documents improperly; and

6. in cases where required, provides for the right of confrontation of witnesses.

See Weber, Permissibility of Testimony by Telephone in State Trial, 85 ALR4th 476, 481. We agree that these are sound considerations for requiring, except under specific circumstances within the parameters of our procedural ruíes and applicable statutes, that witnesses testify in person at trial.

In particular, we note that the right of confrontation long provided in all criminal cases, is also required in civil cases in Montana under Rule 611(e) M.R.Evid. Rule 611, M.R.Evid., is primarily based on the similar federal rule of evidence. However, Montana’s subsection (e), is original and provides:

Confrontation. Except as otherwise provided by constitution, statute, these rules, or other rules applicable to the courts of this state, at the trial of an action, a witness can be heard only in the presence and subject to the examination of all the parties to the action, if they choose to attend and examine.

Rule 611(e), M.R.Evid. The importance in Montana of the requirement that a witness testify at trial in the presence of all parties is evidenced by the inclusion of subsection (e) in our adoption of Rule 611, M.R.Evid. The reasoning behind Montana’s addition of subsection (e) is illustrated in Coy v. Iowa (1988), 487 U.S. 1012, 1019-1020, 108 S.Ct. 2798, 2802, 101 L.Ed.2d 857. (Citations omitted.)

The perception that confrontation is essential to fairness has persisted over the centuries because there is much truth to it. A witness “may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts. He can now understand what sort of human being that man is.” It is always more difficult to tell a lie about a person “to his face” than “behind his back.” In the former context, even if the lie is told, it will often be told less convincingly. The Confrontation Clause does not, of course, compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere, but the trier of fact will draw its own conclusions. Thus the right to face-to-face confrontation serves much the same purpose as a less explicit component of the Confrontation Clause that we have had more frequent occasion to discuss-the right to cross-examine the accuser; both “ensur[e]the integrity of the factfinding process.”

Although Coy is a criminal case and applies to a constitutional protection, the principles behind the right to confront witnesses are applicable to civil cases in Montana, as well, and that right is guaranteed in Rule 611 (e), M.R.Evid. The integrity of the factfinding process at trial is undermined where the parties do not have the opportunity to confront each other or the witnesses, where the finder of fact does not have the opportunity to observe the parties and the witnesses and where the opposing party cannot effectively cross-examine the other party or the witnesses.

If the phrase “a witness can be heard only in the presence and subject to the examination of all the parties ...” is to have any meaning, then, in the absence of a specific rule or statutory exception to the contrary, the witness must be physically present in the courtroom to testify personally at trial unless all parties and the court agree to a different method of examination which protects the parties’ rights of confrontation and cross-examination and, at the same time, allows the fact finder to assess the witness’ credibility, testimony and the evidence presented.

Here, it was impossible for the court to make a determination as to the relative credibility of the party-witnesses because it did not have an opportunity to observe the testimony of both Mark and Judith. The parties in a dissolution action often deliver conflicting evidence, and it is the court’s role to determine who is the more credible witness. This can be accomplished most effectively by observing each party’s demeanor during testimony.

Judith’s reasons for testifying over the telephone included fear of Mark, cost of travel and inability to obtain adequate child care for her son while she traveled to Montana for the hearing. Although we recognize that Judith had legitimate concerns about returning to Montana, these concerns do not outweigh the necessity for the trial court to determine credibility. In this instance, the corut could not evaluate the demeanor of the witness nor could it determine whether she was being coached or was improperly referring to documents.

Moreover, it was difficult for Mark’s counsel to effectively cross-examine Judith about the couple’s financial records because Judith did not have those records or copies of those records to which she could refer and provide pertinent testimony. We cannot say that this was a fair trial on the merits when one side was so obviously handicapped and was unable to effectively confront and cross-examine the adverse party.

Furthermore, alternative solutions to Judith’s problems and concerns were available under Section V., Depositions and Discovery, M.R.Civ.R, and one or more of those alternatives could have been pursued instead of simply allowing her telephonic testimony over objection.As Mark’s counsel stated during the hearing, “this case has been pending for a long time already. She was not going to be here, that’s fine, but we could have done this by deposition a long time ago. As recently as this week, I allowed Mr. Bonamarte to be deposed. That could have been done is [sic] she wasn’t going to be here.”

In this case, for example, it would have been possible to present Judith’s testimony at trial by videotaped deposition. See, Rule 30(h), M.R.Civ.R This was done quite effectively in Ferrante by Ferrante v. Ferrante (N.Y. Sup. 1985), 485 N.Y.S.2d 960. The procedure utilized there is described as follows:

Plaintiff’s counsel was advised in advance of the date and time of the telephone conference call. He was instructed to have present at plaintiff’s nursing home at the time of the conference call, a notary to administer the oath to the witnesses and a videotape operator to record the witnesses’ testimony. He was also instructed to provide the plaintiff with exact legible copies of all exhibits to be introduced. The purpose of this was to insure that plaintiff, after identifying each exhibit, could hold it up to the camera to be videotaped, thus permitting the court when reviewing the tape, to ensure that the marked exhibits and the copies in plaintiff’s possession were the same.

Ferrante, 485 N.Y.S.2d at 962.

The plaintifi/witness in that case was a 92 year old woman who was in poor physical condition and was permanently confined to a nursing home in Florida. The court, in solving the dilemma posed by the necessity of taking the plaintiff’s testimony without her presence in court while still protecting the rights of the defendant, stressed the importance of the videotaped record of the testimony. It particularly noted that the plaintiff was provided with copies of each exhibit and she was able to examine them before they were admitted into evidence. Each page of the copy of each exhibit was also videotaped to insure that the proper documents were being used and admitted.

While, within the parameters established in our procedural rules and applicable statutes, the court and counsel are free to agree upon and to utilize different methods of presenting the testimony of and cross-examining a party or witness unable to appear personally at trial to testify, the above-described method at least ensures that the witness’ identity can be established, assures that the witness is not being coached, assures that the witness is not improperly referring to documents (85 ALR4th at 481), and assures that any marked exhibits and copies of the exhibits being referred to and offered are the same. (Ferrante, 485 N.Y.S.2d at 962.) In addition, that method provides the court with a visual record of the witness’ testimony and allows the fact finder the opportunity to draw conclusions about demeanor and credibility. Ferrante, 485 N.Y.S.2d at 962.

Finally, we do not here adopt a per se rule that would preclude the use of telephonic testimony at trial in all cases or circumstances. Where the trial court approves and all parties consent, or at least have sufficient notice to object and/or make alternative arrangements, we see no reason why telephonic testimony cannot be utilized in appropriate situations where special or exigent circumstances dictate the necessity for that type of testimony, where rights of confrontation and cross-examination are not substantially compromised or are otherwise adequately preserved, where the identity and credibility of a witness are not critical and where there is no need to use documentary or tangible exhibits in examining the witness. “Generally, special circumstances such as exigency, consent and knowledge of the witness’ identity and credentials, have dictated the admissibility of telephonic testimony .... In the absence of exigency or consent, telephonic testimony generally has not been allowed.” Byrd v. Nix (Miss. 1989), 548 So.2d 1317, 1319-1320. (Citations omitted.) (Emphasis added.) See also; Aqua Marine Prod. v. Pathe Computer (N.J. 1988), 551 A.2d 195, 200.

None of those circumstances are present in the instant case. Although we sympathize with Judith’s position and the District Court’s attempt to accommodate her situation and concerns, in this case allowing her to testify by telephone at the hearing on the merits over the objection of the adverse party was not an acceptable substitute for her personal appearance in court, particularly given the significance placed upon the right to confront witnesses in civil trials in Montana as set forth in Rule 611(e), M.R.Evid. “The opportunity to observe a witness is so critical to judicial control and effective cross-examination that its denial is manifestly prejudicial.” State ex rel. Juv. Dept. v. Gates (Or. 1987), 740 P.2d 217, 218.

We hold that the District Court abused its discretion in allowing Judith to testify by telephone over objection at the hearing on the merits. We reverse and remand for a new trial in order to allow Mark a meaningful opportunity to “confront” the witness and to effectively cross-examine and in order to afford the opportunity for the trial court to observe the witness and make its determination as to her credibility.

In view of our holding here and the necessity for a new trial, we decline to rule on the other issues raised by the parties involving child support, custody and the District Court’s decision to allow Quentin to retain Judith’s surname.

Reversed and remanded for further proceedings consistent with this opinion.

JUSTICES HARRISON, TRIEWEILER, HUNT and GRAY concur.


author: JUSTICE HUNT

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. ROD JOHNSTON, Defendant and Appellant.
    No. 93-141.
    Submitted on Briefs October 21, 1993.
    Decided January 12, 1994.
    51 St.Rep. 5.
    263 Mont. 179.
    867 P.2d 1090.
    For Defendant and Appellant: Karl Knuchel, Livingston.

      For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General; George Schunk, Assistant Attorney General, Helena; Wm, Neis Swandal, Park County Attorney, Livingston.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant, Rod Johnston, appeals from a judgment of the Sixth Judicial District Court, Park County, finding him guilty of shooting and taking a bull elk near Gardiner, Montana, before the morning legal shooting time during hunting season.

We affirm.

Appellant raises the following issue on appeal:

Did the Department of Fish, Wildlife, and Parks’ (Department) regulations promulgated under § 87-1-201, MCA, regarding legal shooting times during big game hunting season, violate appellant’s due process rights, or in the alternative did his conviction result from a violation of the rules of statutory construction?

On November 22, 1991, appellant was a licensed hunter, hunting near Gardiner, Park County, Montana. Appellant acknowledges that at 7:02 a.m. on that day, he shot and captured a six-point bull elk. Soon thereafter, a warden cited appellant for violation of § 87-1-102, MCA (1991), a misdemeanor, for taking a big game animal prior to the legal shooting time. The warden then confiscated the bull elk and sold it through a Fish and Game auction in Bozeman, Montana.

Appellant was convicted by jury verdict in the Park County Justice Court, and sentenced to a fine of $50, surcharge of $15, and court costs of $100. He appealed to the Sixth Judicial District Court, Park County, which set a trial de novo by jury. However, upon stipulation by the parties, the District Court heard the case after the parties stipulated to the findings of fact. The court found appellant guilty of shooting and taking a bull elk before the legal shooting time, in violation of § 87-1-102, MCA (1991). The court sentenced him to a minimum statutory fine of $300, a surcharge of $15, and court costs of $100, the imposition of which the court stayed pending this appeal.

Did the Department’s regulations promulgated under § 87-1-201, MCA, regarding the legal shooting time during big game hunting season, violate appellant’s due process rights, or in the alternative did his conviction result from a violation of the rules of statutory construction?

The Department is granted broad statutory powers to supervise Montana’s fish, wildlife, and parks. See § 87-1-201(1), MCA. Operating under legislative delegation of rulemaking authority (see § 87-1-201(7), MCA), the Department, through their Commission, has established hunting hours for big game animals:

Authorized hunting hours for the taking of big game animals begins one-half hour before sunrise and ends one-half horn1 after sunset each day of the hunting season. See official sunrise-sunset table on page 46 of these regulations.

Big Game Hunting Regulations Montana (1991) at 3 (adopted by administrative order on March 7, 1991). Additionally, the Commission adopted administrative rules regarding the timetable as follows:

12.6.401 TIME ZONES (1) The following time zone descriptions and sunrise-sunset hour schedules are official times for the zones designated for the purpose of setting daily open and closed seasons. The time is mountain standard and during periods of daylight savings time add 1 hour (see following 4 pages).
(2) An abbreviated version of these tables may be printed on the big game maps and may be utilized by hunters during big game seasons. The complete table will be available at all regional offices and at the Helena headquarters.

This rule and the accompanying time zone tables are published in the Administrative Rules of Montana. The sunrise time set out in the table for November 22, 1991, relevant to hunting big game in Park County is 7:41 a.m. Therefore, according to the regulations, the earliest a hunter could have begun shooting on that date was one-half horn- before 7:41 a.m., or 7:11 a.m.

Appellant argues that the hunting hour regulations established by the Department are confusing, internally inconsistent, ambiguous and vague, and factually erroneous requiring dismissal of the charges against him for failure to protect his right to due process. Although appellant’s argument is inventive, we do not agree.

Appellant argues that the regulations confuse hunters. He argues that the Big Game Hunting Regulations, distributed to licensed big game hunters by the Department, state that hunting hours begin “one-half (1/2) hour before sunrise,” and then proceed to cross-reference the Administrative Rules of Montana’s timetable, which he argues, states the “actual sunrise” times. According to appellant, these two references are inconsistent by definition and thus confusing. The two references in the regulations are not inconsistent, but rather, one reference is more general, and cross-references the other more specific reference — the timetables.

Further, appellant argues that the term “sunrise” is ambiguous and vague, and should mean “actual sunrise” as calculated by the United States Naval Observatory, rather than as set out in the sunrise-sunset timetables by the Department. The Naval Observatory calculated sunrise in Park County on November 22,1991, at 7:31 a.m. However, nowhere in his brief does appellant assert that on November 22,1991, he had relied on Naval Observatory sunrise time, or the Yellowstone National Park informational radio station which, he claims, relies on the Naval Observatory time, when he shot the bull elk at 7:01 a.m.

We have held that a statute violates due process for vagueness when the language used does not sufficiently define the required conduct and persons of common intelligence must necessarily guess at its meaning. Rierson v. State (1980), 188 Mont. 522, 526, 614 P.2d 1020, 1023. We agree here with the District Court that:

[TJhere is no ambiguity in the regulations by Fish and Game’s [sic] stating hunting begins thirty minutes before sunrise, and then printing exact schedules for sunrise, and no breach of due process occurred because the regulations are freely available to all hunters, anyone of ordinary intelligence would understand the same....

The administrative rules and the pamphlets available to licensed hunters leave no room for a prospective hunter to guess at what time he could begin shooting on any given day of hunting season. Specifically, the regulations sufficiently define the meaning of “sunrise” in the published timetables by providing the exact time at which sunrise occurs for purposes of shooting big game animals.

In addition to the foregoing, appellant asserts that the rules and regulations contain erroneous scientific information and are subject to human error. Specifically, he argues that the tables incorrectly indicate on which day daylight savings time had begun in 1992. While the tables may be vulnerable to human error and incorrectly state the commencement time for daylight savings, they precisely identified the time of sunrise on November 22, 1991, so that a person of common intelligence would not need to guess when it would occur relevant to big game shooting time.

Finally, appellant argues in the alternative that his conviction resulted from a violation of the rules of statutory construction. He argues that since these regulations are ambiguous and vague, they should be construed and interpreted in his favor, resulting in an acquittal. In light of our determination that the regulations are not ambiguous or vague, we hold that the regulations should not be interpreted in appellant’s favor resulting in an acquittal.

We affirm.

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


text:
    IN RE THE MARRIAGE OF JODY BROWN, Petitioner and Respondent, and STEPHEN BROWN, Respondent and Appellant.
    No. 93-344.
    Submitted on Briefs November 18, 1993.
    Decided January 13, 1994.
    51 St.Rep. 7.
    263 Mont. 184.
    867 P.2d 381.

      For Appellant: Curtis G. Thompson and Patrick R. Watt, Jardine, Stephenson, Blewett & Weaver, Great Falls.
    For Respondent: Antonia P. Marra, Bell & Marra, Great Falls.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from an order of the Eighth Judicial District Court, Cascade County, in a dissolution action. We affirm.

We restate the issues on appeal as follows:

1. Did Jody’s URESA action modify the underlying order for child support?

2. Were Jody’s claims for child support obligations accruing more than ten years before the filing date of her Motion for Enforcement of the Divorce Decree and Order to Show Cause time-barred by § 27-2-201, MCA?

3. Did the District Court err when it computed Stephen’s past and current child support obligations?

The petitioner, Jody Brown (Jody) and the respondent Stephen Brown (Stephen) were married in Helena, Montana on April 22,1972. The marriage was dissolved on July 23,1979, Jody was given custody of the three minor children and Stephen was granted reasonable visitation and was ordered to pay $125 per child per month for child support.

Jody encountered problems obtaining her child support payments from Stephen. In the fall of 1979, Stephen was ordered to show cause for noncompliance with the dissolution decree and was ordered to pay child support. Stephen still did not fulfill his child support obligations, and in March of 1982, Jody brought an action against Stephen under the Revised Uniform Reciprocal Enforcement of Support Act (1968), §§ 40-5-101, MCA, et seq., (URESA) to obtain the child support monies to which she was entitled.

As a result of her bringing that action, Jody and Stephen executed a written stipulation stating that Stephen was in arrears in his child support payments in the amount of $16,425.00 through July 1982, and pursuant to which he agreed to pay $60 per week for child support, those payments to continue until further order of the court.

The Stipulation was dated “_day of August, 1982” and was signed by both parties. On September 3, 1982, the District Judge signed an Order (which immediately followed the parties signatures on the same page). That Order "... entered [the stipulation] as an Order of the Court...” enforceable by contempt, and, along with the Stipulation, was filed with the Clerk of Court on that same date.

On June 3,1992, venue of the case was transferred from Lewis and Clark County to Cascade County. On June 19, 1992, still unable to collect her child support, Jody filed a Motion for Enforcement of the Dissolution Decree and for an Order to Show Cause why the decree should not be enforced.

In its February 26, 1993, Memorandum and Order, the District Court concluded that the Stipulation and Order of September 3,1982, did not modify the original dissolution decree and that the statute of limitations did not bar Jody from recovering child support due prior to August 1982. The court calculated the back child support owed at $58,800.00 and ordered Stephen to pay child support in the amount of $125 per child per month as ordered in the original decree. The court allowed Stephen credits amounting to $8,031.65, leaving a balance of $50,768.35. Stephen appeals from this order.

The standard of review of the trial court’s findings relating to child support is that a presumption exists in favor of the trial court, and we will not overturn its findings unless the court has abused its discretion. In re Marriage of Nikolaisen (1993), 257 Mont. 1, 8, 847 P.2d 287, 291. Our standard of review of the trial court’s conclusions of law on such matters is whether its conclusions are correct. Burris v. Burris (1993), 258 Mont. 265, 852 P.2d 616, 619.

I. MODIFICATION OF ORIGINAL DISSOLUTION DECREE

Stephen contends that the trial court erred when it ruled that the stipulation did not modify the underlying child support obligation established in the decree of dissolution. Jody states that URESA is an enforcement procedure and does not modify the underlying judgment -unless so stated. We agree with Jody’s analysis of this issue.

Our decision in In re Marriage of Petranek (1992), 255 Mont. 458, 843 P.2d 784, is dispositive. In that case, noting that URESA was adopted to “...provide an auxiliary or supplemental remedy for the enforcement of support orders...”, we stated:

While a court in a URESA proceeding looks to the ability of the obligor to pay at the time of the enforcement proceeding, the authority of the court originally ordering payment in {sic} not affected. Nor is its order modified by an order of a co-art fixing another or different sum pursuant to the URESA action. ...
... URESA support orders which do not reference prior support awards do not modify them. Furthermore, under Montana law, we have clearly stated that child support modification and URESA actions do not merge. Arequest for modification of a divorce decree is separate and distinct from an action arising under URESA.

Petranek, 843 P.2d at 786. (Citations omitted.)

In the instant case, the 1982 Stipulation provides in pertinent part that:

IV.

This Stipulation does not act as a waiver of any legal arrearages, totalling $16,425.00 through July 1982, only as an agreement, that at present, URESA enforcement shall only be obtained on the agreed amount set forth above [$60 per week].

The 1982 Stipulation and Order does not reference the underlying child support award nor did either party file a motion to modify the underlying dissolution decree. There is absolutely nothing in the Stipulation or court Order modifying the original child support order. The Stipulation and Order deal only with enforcement of the support obligation contained in the original decree of dissolution. We hold that the District Court correctly concluded that the original dissolution decree which required Stephen to pay $125 per child per month remained valid and was not modified by the 1982 Stipulation and Order.

II. STATUTE OF LIMITATIONS

Stephen argues that the District Court erroneously determined that the 1982 Stipulation tolled the 10 year statute of limitations applicable to the enforcement of past due child support obligations. He claims the court also erred by concluding that periodic payments by Stephen revived the statute each time a payment was made. Jody counters that the arrearages from prior to August 1982 are within the statute of limitations because the URESA action of 1982, accompanying Stipulation and subsequent periodic support payments tolled the statute of limitations, and that, therefore, Stephen owes all arrearages, including those due prior to August of 1982. We conclude that the District Court’s decision was correct and affirm, although, not for the reasons expressed in the court’s Memorandum and Order. Wolfe v. Webb (1992), 251 Mont. 217, 234, 824 P.2d 240, 250.

In Marriage of Hooper (Crittendon) (1991), 247 Mont. 322, 327, 806 P.2d 541, 544, we referred to the majority rule that “each child support payment becomes a separate, final judgment as of its date of accrual, [and that] the statute of limitations pertaining to final judgments applies,” and quoted In re Marriage of Sabo (1986), 224 Mont. 252, 254, 730 P.2d 1112, 1113, for the rule that each child support payment “becomes a judgment debt similar to any other judgment for money.”

The statute of limitations for the commencement of an action on a judgment is § 27-2-201, MCA, and we have held that statute is the appropriate statute of limitations for the commencement of actions to enforce child support decrees. Hooper, 806 P.2d at 544. See also Petranek, 843 P.2d at 787.

Section 27-2-201(1), MCA, provides that “the period prescribed for the commencement of an action upon a judgment or decree of any court of record of the United States or of any state within the United States is within 10 years.”

Therefore, as each child support payment obligation comes due, that payment obligation becomes a judgment, and the 10 year statute of limitations commences to run on the accrual date of that judgment with respect to an action to enforce that judgment.

In this case, applying the above rules, an action to collect child support arrearages (judgments) would be time-barred as to payments (judgments) accruing prior to June 19, 1982 - 10 years prior to the date that Jody filed her Motion for Enforcement on June 19, 1992.

Jody, however, claims that the statute of limitations was tolled for two reasons. First, Jody claims that the 1982 URESA action and subsequent stipulation tolled the statute of limitations. Second, she contends that partial payments made on child support due also tolled the statute of limitations. The District Court based its decision on Jody’s second argument, and, it appears, also implicitly agreed with her first argument.

In March 1982, Jody filed a URESA action for enforcement of Stephen’s support obligations because Stephen would not comply with the child support order from the dissolution decree. In August 1982, in settlement of the URESA action, Jody and Stephen signed a stipulation acknowledging that Stephen was in arrears for child support in the amount of $16,425.00 through July 1982 and that henceforth, he would pay the amount of $60 per week. On September 3,1982, the trial court ordered that the Stipulation be entered as an order of the court.

Jody contends that the URESA action was a suit to enforce or collect a judgment as contemplated by § 27-2-201, MCA, and that the court’s September 3, 1982, Order merged the various original monthly judgments into a single new judgment as of that date. In making that argument Jody cites provisions of the Uniform Interstate Family Support Act (UIFSA), enacted at Ch. 328, L., 1993, and effective October 1,1993. While UIFSA replaced URESA, with some of the earlier provisions being repealed, Jody’s action was brought under the earlier URESA.

That aside, we do not find it necessary, for purposes of this case, to determine whether an action brought under UIFSA or URESA is an action to collect a judgment for purposes of renewing the 10 year statute of limitations because the September 3,1982, Order was not a judgment for the $16,425.00 child support arrearages acknowledged by the parties in the Stipulation. The District Court simply entered an order to enforce the payment provisions of the parties Stipulation pursuant to its terms.

That is not to say, however, that the statute of limitations was not tolled. While the Stipulation and September 3, 1982, Order did not modify or affect the underlying judgment of the dissolution decree, and while the Order did not create and merge into a single new judgment, the various prior unsatisfied judgments under the dissolution decree, by their Stipulation, the parties did acknowledge the existence of the unsatisfied judgments prior to the Stipulation. It was that acknowledgement which tolled the statute of limitations.

Dodd v. Simon (1942), 113 Mont. 536, 129 P.2d 224, is dispositive on this point. Dodd is factually dissimilar to the instant case but the principle drawn from Dodd applies here. The acknowledgement of a judgment unsatisfied, made in open court, will toll the statute of limitations. In that case we stated:

The stipulation made on September 20, 1935, likewise had the effect of tolling the statute limiting to ten years the time of effectiveness of the judgment. It was an acknowledgement of the existence of the judgment unsatisfied, made in open court, and intended for the court to act upon in administering the rights of the parties with respect to the matter of possession, and as determined by the judgment. (31 Am. Jur., Judgments, sec. 398; annotation 21 A. L. R. 1061.) While there is divergency of views on the question, the cases holding that a statute limiting the time of effectiveness of a judgment may be tolled by acknowledgment of the judgment seem to establish the majority rule, and which we follow. While the cases cited in the annotations above referred to deal with judgments for the recovery of money, we can see no reason why the rule should not be applied to judgments for recovery of possession of real property. [Citation omitted.]

Dodd, 129 P.2d at 228-229.

That the rule followed in Dodd has remained viable since that decision was handed down is, perhaps, best underscored by the amendment of § 27-2-409, MCA, in 1987 to provide, in pertinent part that:

[a]n acknowledgement... of a debt is sufficient evidence to cause the relevant statute of limitations to begin running anew. ... An acknowledgement must be contained in some writing signed by the party charged thereby.

Here, the Stipulation acknowledges that there exist legal arrearages totalling $16,425.00 through July of 1982. At no time did Stephen ever dispute the pre-August, 1982 arrearages total of $16,425.00, and while, as he now argues, he may not have had the intent to create or renew the prior judgments for unpaid child support, he nevertheless, acknowledged the existence and amount of such arrearages (judgments) in writing, in open court for the purpose of obtaining the court’s blessing on his temporarily paying less per month than he was obligated under the dissolution decree. Stephen signed this Stipulation and the Stipulation was then entered as an order of the court without any qualification on his part as to the existence or amount of the arrearages set forth in the Stipulation.

Stephen cannot have it both ways. He cannot, on the one hand, stipulate in writing, in open court as to the existence and amount of his child support arrearages in order to gain the advantage of the Stipulation and Order, and, on the other hand, then deny the legal effect of his admissions. Under the circumstances, we conclude that the Stipulation was an acknowledgement by Stephen of pre-August 1982 child support judgments, unsatisfied, made in open court, and, that under the rule expressed in Dodd, that acknowledgement served to toll the statute of limitations applicable to the enforcement of each unsatisfied monthly child support judgment not already time-barred.

Since the dissolution degree was entered on July 23,1979, none of the unsatisfied monthly child support judgments were yet time-barred in 1982, and, accordingly, the 10 year statute of limitations commenced to run anew on all such judgments through July 1982, on the date Stephen signed the Stipulation and acknowledged such unsatisfied judgments in open court. Accordingly, Jody’s Motion to Enforce the Dissolution Decree, filed June 19, 1992, was within the 10 year statute of limitations for the commencement of an action to collect or enforce a judgment. We, therefore, hold that the District Court was correct in including the full amount of Stephen’s child support arrearages through July 1982, amounting to $16,425.00, in its calculation of past due child support.

Having determined that Jody’s enforcement action as to all of Stephen’s delinquent child support payments was not time-barred and that the District Court correctly included all of Stephen’s unsatisfied child support obligations in its calculation of past due support, we do not reach Jody’s second argument, or the District Court’s determination that the statute of limitations was tolled by Stephen’s partial payments of child support made periodically to Jody.

III. STEPHEN’S PAST AND CURRENT CHILD SUPPORT OBLIGATIONS

We find no abuse of discretion or legal basis on which to overturn the District Court’s calculation of Stephen’s past and current child support obligations as set forth in its Memorandum and Order dated February 26, 1993.

AFFIRMED.

JUSTICES HARRISON, HUNT, TRIEWEILER and WEBER concur.