author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RICHARD A. STILL, Defendant and Appellant.
    No. 94-593.
    Submitted on Briefs July 27, 1995.
    Decided September 14, 1995.
    52 St.Rep. 965.
    902 P.2d 546.
    273 Mont. 261.
    For Appellant: James Maher, Basin.

      For Respondent: Hon. Joseph P. Mazurek, Attorney General, Kathy Seeley, Assistant Attorney General, Helena; Deborah F. Butler, Acting Jefferson County Attorney, Boulder.
   JUSTICE NELSON

delivered the Opinion of the Court.

Appellant Richard A. Still (Still) was charged in Jefferson County Justice Court with five misdemeanor violations of § 87-2-106, MCA, for affirming to a false statement in order to obtain resident “A” and “B” deer licenses, an elk license, a conservation/fishing license, and an antelope license. The Justice Court sentenced Still to pay $974 in fines. Still appealed to the Fifth Judicial District Court, Jefferson County. The District Court dismissed the appeal and let the Justice Court’s decision stand. Still appeals from the decision of the Fifth Judicial District Court. We affirm.

We address the following issue on appeal:

Did the District Court err in dismissing Still’s appeal and in letting the Justice Court’s decision stand?

BACKGROUND

Still and his family moved to Montana in late April of 1993. He immediately took steps to establish his residency in the state by renting a post office box, registering to vote, and applying for a driver’s license. On May 6, 1993, Still purchased a resident deer “A” license, a resident elk license, a resident conservation/fishing license, and a resident archery stamp. On September 25, 1993, Still purchased a resident deer “B” license. On each license application, Still stated that he had been a resident for six months. On February 18, 1994, the Department of Fish Wildlife and Parks issued five citations to Still for affirming to false statements on his applications in violation of § 87-2-106, MCA. This statute governs applications for licenses, penalties for violations, and forfeiture of privileges.

The charges were brought in Jefferson County Justice Court. The State moved to dismiss the charge of affirming to a false statement to obtain a resident antelope license. The Justice Court dismissed the charge without prejudice. Still then withdrew his not guilty pleas, pleaded guilty to four misdemeanor counts of violating § 87-2-106, MCA, and reserved his right to appeal. The Justice Cotut sentenced Still to pay $974 in fines. Still subsequently appealed to the Fifth Judicial District Court, Jefferson County. The District Court considered the briefs filed in the Justice Court and found for the State, dismissing Still’s appeal and letting the Justice Court’s decision stand. Still appeals the District Court’s decision.

DISCUSSION

Did the District Court err in dismissing Still’s appeal and in letting the Justice Court’s decision stand?

We review a district court’s conclusions of law to determine whether the tribunal’s interpretation of the law is correct. State v. Barker (1993), 260 Mont. 85, 88, 858 P.2d 360, 362 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603).

Still argues that § 87-2-102, MCA, violates his constitutional rights to equal protection, due process, and travel and that the six-month durational residency requirement in § 87-2-102, MCA, does not apply to Montana citizens. The State correctly argues that we need not address the constitutional or the statutory questions concerning § 87-2-102, MCA, because Still’s violations of a separate statute, § 87-2-106, MCA, are dispositive.

This Court has repeatedly recognized that “courts should avoid constitutional issues whenever possible.” Wolfe v. State, Dept. of Labor & Ind. (1992), 255 Mont. 336, 339, 843 P.2d 338, 340 (citing Ingraham v. Champion Intern. (1990), 243 Mont. 42, 46, 793 P.2d 769, 771). Certain constraints govern the Court’s power to determine the constitutionality of statutes. Among those constraints is the principle that we will not rule on the constitutionality of a legislative act if we are able to decide the case without reaching constitutional considerations. Ingraham, 793 P.2d at 771; Wolfe, 843 P.2d at 340 (citing Taylor v. Dept. of Fish, Wildlife & Parks (1983), 205 Mont. 85, 90, 666 P.2d 1228, 1231); see also State ex rel. Hammond v. Hager (1972), 160 Mont. 391, 400, 503 P.2d 52, 57.

In the instant case, the State brought charges against Still for violating § 87-2-106, MCA. Section 87-2-106, MCA, provides in part:

87-2-106. Application for license — penalties for violation — forfeiture of privileges. (1) ... The applicant shall state the applicant’s name, age, occupation, place of residence, post-office address, the qualifying length of time as a resident in the state of Montana, whether a citizen of the United States or an alien, and other facts, data, or descriptions as may be required by the department. ...
(6) It is unlawful to subscribe to any statement, on any application or license, that is materially false. Any material false statement contained in an application renders the license issued pursuant to it void. A person violating any provision of this statute is guilty of a misdemeanor.
(7) (a) A person not meeting the residency criteria set out in 87-2-102 who is convicted of affirming to a false statement to obtain a resident license shall be:
(i) fined not less than the greater of $100 or twice the cost of the nonresident license that authorized the sought-after privilege or more than $1,000;
(ii) imprisoned in the county jail for not more than 6 months; or
(iii) both fined and imprisoned.
(b) In addition to the penalties specified in subsection (7)(a), upon conviction or forfeiture of bond or bail, the person shall forfeit any current hunting, fishing, and trapping licenses and the privilege to hunt, fish, and trap in Montana for not less than 18 months. ... [Emphasis added.]

When Still applied for his resident licenses, he affirmed that he had been a resident for six months, when in fact, he had been a resident for less than two weeks for four of the applications and for approximately five months for one application. Section 87-2-106, MCA, states that it is unlawful to subscribe to a statement on the application that is materially false and a person violating a provision of the statute is guilty of a misdemeanor. Regardless of whether Still disagrees with the six-month durational residency requirement for a resident fishing, hunting, or trapping license, he subscribed to statements that were materially false.

Still’s violations of the statute governing applications for fishing, hunting, or trapping licenses are separate and distinct from any constitutional or statutory challenge of the statute defining residency for the above licenses. The convictions stand independently of the statutory residency requirement. Had Still wished to challenge the six-month durational residency requirement on both constitutional and statutory grounds, he should have filled out the application truthfully and, if denied the license, then challenged the denial of the license. See Baldwin v. Montana Fish & Game Comm’n (1978), 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (challenging the State’s statutory licensing requirements which impose higher fees on nonresidents than on residents); Monroe v. State (1994), 265 Mont. 1, 873 P.2d. 230 (seeking a declaratory judgment that the statute defining “resident” for purposes of issuing resident fishing, hunting, and trapping licenses was void for vagueness).

Still did not fill out the applications truthfully, but instead attested to false statements. His violations of § 87-2-106, MCA, are dispositive. As a result, we need not discuss the issues of statutory construction of § 87-2-102, MCA, and the alleged violations of Still’s right to equal protection, right to due process, and right to travel. Accordingly, we hold that the District Court correctly interpreted the applicable law.

Affirmed.

JUSTICES GRAY, HUNT, TRIEWEILER and LEAPHART concur.


source: Caselaw Access Project

license: Public Domain

text:
    BENJAMIN C. ROBERTS, Plaintiff/Appellant, v. PEGASUS GOLD CORPORATION, a foreign corporation; O’KEEFE DRILLING COMPANY, INC., a Montana corporation; BEAL MOUNTAIN MINING, INC., a Montana corporation; and DOES ONE through FIVE, Defendants/Respondents.
    No. 94-482.
    Submitted on Briefs July 13, 1995.
    Rehearing Denied October 17, 1995.
    Decided September 19, 1995.
    52 St.Rep. 967.
    903 P.2d 782.
    273 Mont. 266.

      For Appellant: Richard J. Pyfer, Small, Hatch, Doubek & Pyfer, Helena.
    For Respondent: Paul C. Meismer, Lucy T. France, Garlington, Lohn & Robinson, Missoula; Thomas E. Hattersley, David C. Dalthorp, Gough, Shanahan, Johnson & Waterman, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from a decision of the Third Judicial District Court, Deer Lodge County, granting summary judgment in favor of respondents, O’Keefe Drilling Company, Inc. (O’Keefe) and Beal Mountain Mining, Inc. (BMMI). We affirm.

We restate the issues as follows:

I. Did the District Court err in ruling that the O’Keefe employees were not acting within their scope of employment in the alleged incident? II. Did the District Court err in finding no genuine issue of material fact existed as to whether a BMMI employee or an O’Keefe employee caused Roberts’ injury?

III. Did the District Court err in determining BMMI had no duty to provide security on the road where the incident occurred?

Facts

BMMI owned and operated Beal Mountain Mine. BMMI hired, as independent contractors, O’Keefe Drilling Company and Dave Smith Contracting. Plaintiff, Benjamin C. Roberts (Roberts), was an employee of Dave Smith Contracting.

On October 9, 1990, at approximately 5:00 p.m., Roberts was hauling a load of clay on a public forest service road leading to the Beal Mountain Mine. Roberts observed a white flatbed truck with three people in the cab and toolboxes, oxygen and acetylene tanks mounted on the back. Roberts testified that, as the flatbed truck passed him, a loud explosion went off causing damage to his left ear. Roberts could not see what was thrown but he believed it was a blasting cap. Testimony was also presented that it was possible, though unlikely, the noise was caused by the driver intentionally causing the truck to backfire. Roberts believed the flatbed truck was one he had seen a few days before which belonged to BMMI.

Roberts reported the incident to a coworker who contacted BMMI. BMMI investigated the incident and concluded, based on the description of the truck and the recorded time schedule, that the flatbed truck belonged to O’Keefe and not to BMMI.

On November 2, 1992, Roberts filed a complaint against O’Keefe, Pegasus Gold Corporation, and BMMI to recover damages as a result of injuries caused by either an employee of BMMI or an employee of O’Keefe. After briefing and oral arguments, the District Court granted summary judgment in favor of all three defendants on July 28, 1994. Roberts appeals the grant of summary judgment to BMMI and O’Keefe only.

Discussion

We apply the same standard in reviewing a district court’s grant of summary judgment as that used by the court under Rule 56(c), M.R.Civ.P. — “[s]ummary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law.” Spain-Morrow Ranch, Inc., v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331-32, citing Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214.

I.

Did the District Court err in ruling that the O’Keefe employees were not acting within their scope of employment in the alleged incident?

Roberts admits the record supports the conclusion that an O’Keefe employee was responsible for the explosion. However, he reserves as a question for the jury whether in fact an O’Keefe employee or a BMMI employee caused the explosion. If the jury found an O’Keefe employee responsible, Roberts contends O’Keefe is liable for its employee’s actions under the theory of respondeat superior.

Roberts refers to Maguire v. State (1992), 254 Mont. 178, 182, 835 P.2d 755, 758, where we restated respondeat superior imposes liability on an employer for wrongful acts of an employee committed within the scope of his employment. Roberts reasons O’Keefe’s employees were in the course of employment at the time the incident occurred because they were in route in a company vehicle from their work place to their own personal vehicles. Roberts cites to Webster v. Mountain States Telephone and Telegraph Company (1939), 108 Mont. 188, 199, 89 P.2d 602, 605, where we said where “the work of an employee creates the necessity for travel, he is in the course of his employment, even though he is serving at the same time some purpose of his own.”

The facts in Webster, however, involved negligent driving and the liability of the employer when the employee was driving in the course of employment. Webster, 89 P.2d at 605. In the case at hand, the alleged injury did not result from the employee driving the vehicle but from intentionally throwing an explosive from the vehicle or causing the truck to backfire. Nothing in the record suggests the act of driving caused the injury to Roberts. Therefore, what we stated in Webster does not apply here.

Roberts further contends that this Court, in Lassabe v. Simmons Drilling, Inc. (1987), 228 Mont. 94, 743 P.2d 568, provided that employees may be considered in the course of employment while going to or coming from work when the employer provides transportation to the job site. Here, O’Keefe provided transportation for its employees to the job site.

Lassabe, though, was a workers’ compensation case and it is recognized that the concept of “scope of employment” in those sorts of cases is broader than in the context of respondeat superior. Larson’s treatise on workers’ compensation law discusses what is meant by “course of employment” in the context of respondeat superior and workers’ compensation.

In the law of respondeat superior, the harmful force is always an act of the servant, or at least an omission which is the equivalent of an act. The inquiry is whether the performance of that act was in furtherance of the master’s business. But in many work[er]’s compensation situations, the harmful force is not the employee’s act, but something acting upon the employee.

1 Larson, Workmen’s Compensation Law § 14.00, pp.4-1 to 4-2.

Moreover, under pre-1987 versions of the Workers’ Compensation Act, we were required to liberally construe workers’ compensation statutes in favor of the employee. See § 39-71-104, MCA (1985), and Grief v. Industrial Accident Fund (1939), 108 Mont. 519, 526, 93 P.2d 961, 963. Respondeat superior cases do not require such an interpretation. Therefore, Lassabe’s interpretation of scope of employment does not control here.

O’Keefe correctly argues there must be some connection between the alleged tortious conduct and the employer’s business to hold the employer liable. The act, if isolated, must not be imputable to the employer. Kornec v. Mike Horse Mining Co. (1947), 120 Mont. 1, 9, 180 P.2d 252, 256. We agree with the District Court’s use of our analysis in Kornec. In Kornec, plaintiff was injured during a scuffle with an employee of defendant while on the job. The quarrel arose out of an ongoing confrontation between plaintiff and defendant’s mining company. There were two different versions of the assault. One version was that the employee attacked plaintiff for threatening to disturb the mine. In that situation, the defendant would have benefited from the tort and would, therefore, be liable for the employee’s action. Kornec, 180 P.2d at 256. It was a question of fact for the jury to determine whether the employee was acting in the course of his employment.

Here, it is Roberts’ contention that the O’Keefe employees threw an explosive from the truck or intentionally caused the truck to backfire as Roberts passed. Accepting Roberts’ interpretation of the facts, there is no genuine issue of material fact. The act of throwing the explosives, or intentionally causing the truck to backfire, was neither authorized by O’Keefe nor was it incidental to conduct authorized. The act did not benefit O’Keefe in any way. See Kornec, 180 P.2d at 256. Therefore, we conclude the District Court did not err in ruling that the O’Keefe employees were not acting within their scope of employment in the alleged incident.

II.

Did the District Court err in finding no genuine issue of material fact existed as to whether a BMMI employee or an O’Keefe employee caused Roberts’ injury?

Roberts argues the record contains a genuine fact question as to who caused the explosion that resulted in his injury. The disputed issue, however, is not material given our holding in Issue I. Neither BMMI nor O’Keefe would be held liable for their respective employees’ actions under these facts.

III.

Did the District Court err in determining BMMI had no duty to provide security on the road where the incident occurred?

Roberts alleges BMMI maintained actual, voluntary control of the road between the mine site and BMMI’s administrative offices. Roberts asserts BMMI monitored and controlled traffic on the roadway to such an extent that it assumed the responsibility of providing security for all road use. Thus, he argues BMMI is liable for the actions of O’Keefe’s employees on a theory of negligent supervision of the road.

We agree with the District Court’s findings that BMMI’s control of the roadway was limited. BMMI provided a pilot car to escort chemical trucks and visitors to the mine site. Additionally, BMMI exercised control over the speed limit along the road solely to minimize dust as was its obligation to the Air Quality Bureau. There is no further evidence in the record to suggest BMMI assumed responsibilities in patrolling the roadway that would lead to an assumption of duty to provide security. Therefore, we conclude the District Court did not err in determining BMMI had no duty to provide security on the road where the incident occurred.

We affirm.

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


author: JUSTICE NELSON JUSTICE LEAPHART,

text:
    IN THE MATTER OF THE ESTATE OF EVERETT ALMER THIES, ELEANOR THIES, Petitioner/Appellant, v. BARBARA LOWE, PATTY CORAM and JOHN THIES, Respondents/Respondents.
    No. 94-363.
    Submitted on Briefs March 23, 1995.
    Decided September 21, 1995.
    52 St.Rep. 970.
    903 P.2d 186.
    273 Mont. 272.

      For Appellant: Virginia A. Bryan, Wright, Tolliver & Guthals, Billings.
    For Respondents: James P. Healow, Sweeney & Healow, Billings.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from a decision of the Thirteenth Judicial District Court, Yellowstone County, declaring the widow (Petitioner/Eleanor) cannot collect against the will of the decedent (Everett). We affirm.

We restate the issue on appeal. Did the District Court err in determining the prenuptial agreement between Eleanor and Everett was valid, thus, precluding Eleanor from collecting her elective share of Everett’s estate?

Facts

Everett and Eleanor were married June 27, 1981. Both Everett and Eleanor had been married previously. Eleanor had one child by her previous marriage and Everett had three children by his. The parties entered into a prenuptial agreement on June 26, 1981. This agreement was prepared by Everett’s attorney (Mr. Gunderson). Eleanor was not represented by counsel in this matter.

The second recital to the prenuptial agreement stated:

WHEREAS, each of the parties owns individual real and personal property, the nature and extent of the holdings of each party having been fully disclosed to the other; ...

Following, the first three substantive paragraphs of the prenuptial agreement stated:

1. After the solemnization of the marriage between the parties, each of them shall separately retain all rights in his or her own property, whether now owned or hereafter acquired, and each of them shall have the absolute and unrestricted right to dispose of such separate property, free from any claim that may be made by the other by reason of their marriage and with the same effect, as if no marriage had been consummated between them.
2. Notwithstanding the provisions of the next preceding and next succeeding paragraphs, any real or personal property acquired as joint tenants during their marriage shall, at the death of one of the parties, vest in the survivor of them.
3. Each of the parties waives and releases all rights as surviving spouse in the property or estate of the other and waives the right to elect to take against the other’s will, whether heretofore or hereafter made.

Mr. Gunderson testified that he did not discuss the prenuptial agreement with Eleanor prior to its preparation. Mr. Gunderson inquired in the presence of Everett and Eleanor whether they understood the agreement and were aware of the assets of the other. Eleanor recalls that Mr. Gunderson asked Everett and her whether they divulged their assets to each other and that Everett said they had. Eleanor claims they had not divulged their assets and, although she knew it at the time, she remained silent and did not speak up.

Eleanor admits reading the agreement. She testified it was her understanding, at the time, the gist of the agreement was that she would not have a claim to anything which Everett and his first wife had accumulated. Eleanor claims nobody explained to her the nature of what was meant by waiving her elective share of the estate. Mr. Gunderson testified Eleanor said nothing at the time to indicate she was dissatisfied with the agreement, she did not understand what she was signing, she was pressured or coerced into signing it, or it only applied to property accumulated in Everett’s prior marriage.

At the time of his marriage to Eleanor, Everett owned his home, two cars, personal belongings and a Piper, Jaftray & Hopwood retirement account valued at $143,090. Eleanor had approximately $7,000 of assets. Eleanor said she supposed Everett owned the home he had lived in for nearly forty years, but he had never said so. Additionally, Eleanor testified that she knew Everett had worked at Piper, Jaftray & Hopwood since shortly after World War II but claimed she did not know he had any retirement benefits or savings through his employer. During their marriage, Eleanor said she quit her job as a realtor, at Everett’s request, and relied on his support.

Eleanor testified that, in 1985-86, in response to a comment made by Everett, she consulted an attorney as to the prenuptial agreement and her financial situation. She said her attorney told her she had signed all of her rights away and should ask Everett to provide for her in an irrevocable will. At Eleanor’s request, Everett drafted a will devising to Eleanor $10,000 in cash, furniture and household goods, a life estate in the family home and earnings on a bond portfolio that he would maintain in a minimum amount of $100,000 for Eleanor’s life. The will provided “[a]s to the bequest to my wife, ELEANOR E. THIES, contained herein, this Will shall be irrevocable so long as we are married and living together.”

Eleanor and Everett had marital conflict which resulted in the filing by Eleanor of a petition for dissolution of marriage on June 6, 1991. The couple separated and Eleanor moved to Colorado. On July 9, 1991, Everett prepared a new will disinheriting Eleanor and naming his children as the sole heirs to his estate. Everett died on March 20, 1992. The pending dissolution action was dismissed by reason of Everett’s death.

At his death, Everett’s Piper Jafiray account was valued at $333,692. Eleanor testified her net worth was under $10,000. Eleanor filed a petition for payment of her elective share on June 19, 1992. A non-jury trial was held on December 21, 1993. The District Court ruled the prenuptial agreement precluded Eleanor from claiming her elective share. Judgment was entered in favor of respondents, Barbara Lowe, Patty Coram and John Thies, on March 30, 1994. From this judgment, Eleanor appeals.

Discussion

Eleanor argues the prenuptial agreement, signed in 1981, contained an invalid waiver under the governing statute — § 72-2-102, MCA(1979). Section 72-2-102, MCA(1979), a codification of UPC § 2-204, provides:

Waiver of rights by spouse. The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property, and family allowance or any of them may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of “all rights” (or equivalent language) in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement. [Emphasis added.]

Eleanor contends, prior to signing the prenuptial agreement, Everett did not disclose his assets to her. Therefore, Eleanor claims the agreement is not valid and she did not waive her elective share.

Eleanor refers to our decision in In Matter of Estate of Flasted (1987), 228 Mont. 85, 741 P.2d 750, where we determined a widow waived her right to an elective share of her husband’s estate in an agreement with her brother-in-law. In that case, the widow signed an agreement acknowledging she had rights to the property of the estate as the deceased’s widow; she was represented by an experienced attorney who drafted the agreement; and, the brother-in-law was not represented by counsel and was unaware of the widow’s statutory rights. Eleanor argues the agreement she signed should be held invalid for the same reasons the widow’s agreement, in Flasted, was found valid — Eleanor did not know she had rights to an elective share of the property; she was not represented by counsel; and, it was Everett’s attorney who drafted the agreement.

In Flasted, however, the widow’s argument was based on the ambiguity of the agreement regarding what rights she was waiving. The agreement’s ambiguity was interpreted against the widow because it was her counsel who drafted the agreement. In the divorce proceedings Eleanor initiated prior to Everett’s death, Eleanor’s counsel stated the prenuptial agreement was “straightforward and simple.” Therefore, it’s ambiguity is not at issue and the Flasted decision does not apply.

Eleanor then refers to Breidenbach v. Wedum (1988), 233 Mont. 478, 760 P.2d 1237, which involves the validity of a family settlement agreement between heirs as a renunciation of the vested rights of a single heir. We held the settlement agreement to be invalid because it did not describe the property or interest, nor did it declare the extent of the renunciation. Eleanor claims her prenuptial agreement lacked the same element — explicit disclosure. Eleanor argues, under Breidenbach, the prenuptial agreement fails.

The heir’s rights which were contested in Breidenbach vested at the decedent’s death because the heir was the named beneficiary of a life insurance policy and was a joint tenant with the decedent in certain property. The governing statute, § 72-2-101, MCA (1979), specifically required that a writing, in a renunciation of succession, shall “describe the property or part thereof or interest therein renounced.” The statute governing the waiver of rights by a spouse, § 72-2-102, MCA (1979), requires only “fair disclosure.” Therefore, Breidenbach does not apply as well.

Eleanor asserts we should consider other states’ interpretations of fair disclosure under UPC § 2-204. Particularly, the New Jersey Superior Court, in DeLorean v. DeLorean (N.J. 1986), 511 A.2d 1257, prescribed that, henceforth, prenuptial agreements must contain a written document setting forth the assets and liabilities of both parties in order to be enforceable. Eleanor also points to decisions of the Maine and Florida Supreme Courts holding that specific disclosures, along with explicit reference to the statutory rights being waived, are necessary for fair disclosure. Estate of Robert Berzinis (Maine 1986), 505 A.2d 86; Estate of Galluzzo (Maine 1992), 615 A.2d 236, 238; and Oliveira v. Sturm (Fla. App. 3 Dist. 1992), 610 So.2d 108.

While detailing assets and values of each party in the prenuptial agreement or by way of attachment or addendum might make some sense from a drafting standpoint, as doing so would likely render the agreement less subject to challenge, the statute at issue here does not impose such a requirement. Rather, § 72-2-102, MCA (1979), requires only that there be “fair disclosure” before the agreement is entered into. It is not the prerogative of this Court or of the trial court to insert into the statute that which has been omitted or omit that which has been inserted. Section 1-2-101, MCA. While recognizing that other states have resolved this issue differently, we, nevertheless, decline to read into the statute a requirement of explicit or detailed disclosure either as part of the agreement itself or as part of the discussions preceding entry into the agreement since that sort of requirement was not included by the legislature.

Rather, the respondents, Everett’s heirs, contend the District Court properly followed the Colorado Supreme Court’s reasoning in a nearly identical situation to the case at hand. In re Estate of Lopata (Colo. 1982), 641 P.2d 952. We agree that Lopata represents the better interpretation of the language in § 72-2-102, MCA (1979). Three days before their wedding, a 57-year old woman and a man 10 years her senior, both with children from prior marriages, executed a prenuptial agreement which included a recital of full disclosure and wherein each renounced any interest in the estate of the other. Similar to the facts surrounding Eleanor and Everett’s agreement, the husband’s attorney drafted the agreement and the wife was not advised by him nor represented by independent counsel. Other than the disclosure recital, there was no evidence that either party disclosed all of his or her assets to the other. The husband’s estate exceeded $1 million— approximately 40 times the net value of his wife’s estate. Nevertheless, the Colorado Supreme Court upheld the district court’s finding that the evidence failed by any standard to establish fraud, concealment, material misrepresentation, or undue influence by the husband at the time the prenuptial contract was entered into. Lopata, 641 P.2d at 956. Under the facts of that case, the court concluded, though the disclosure of the husband’s assets to his wife was general, it was entirely fair.

The District Court acknowledged that a number of other states take a fairly stringent view concerning the extent of disclosure required to constitute fair disclosure. The court stated the best procedure would obviously be to insert in the prenuptial agreement the disclosure of assets and values between the parties. However, the court believed the Colorado Supreme Court enunciated the better view of fair disclosure when it stated the following:

Fair disclosure contemplates that each spouse should be given information, of a general and approximate nature, concerning the net worth of the other. Each party has a duty to consider and evaluate the information received before signing an agreement since they are not assumed to have lost their judgmental faculties because of their pending marriage.

Lopata, 641 P.2d at 955.

The District Court noted, since Everett was deceased, Eleanor was the only witness available who could testify to the actual discussions between her and Everett concerning their assets. The court, as the trier of fact, found Eleanor’s testimony involving Everett’s disclosure and her general knowledge of Everett’s worth not particularly credible. “The credibility of witnesses and the weight to be assigned to their testimony are to be determined by the trier of fact, and disputed question of fact and credibility will not be disturbed on appeal [citation omitted].” State v. Moreno (1990), 241 Mont. 359, 361, 787 P.2d 334, 336.

In considering what Eleanor claimed she knew, what was placed in evidence by her own witness, and the recitation in the prenuptial agreement that the parties had made a full disclosure of their assets, the District Court found “Eleanor at least in general terms knew that Everett had a residence, two cars, the personal belongings in the residence and some retirement or savings account through his employer Piper, Jaffray & Hopwood.” The District Court concluded “there was at least a general disclosure of the assets and income capacity of Everett prior to marriage which would constitute a ‘fair disclosure’ under Section 72-2-10[2], MCA.” We also note Eleanor acknowledged in the written agreement that “the nature and extent of the holdings of each party [were] fully disclosed to the other.”

Whether there was fair disclosure of Everett’s assets prior to the parties’ execution of the prenuptial agreement was a factual determination to be made by the District Court. We review a district court’s finding of fact to determine if the findings are clearly erroneous. Columbia Grain International v. Cereck (1993), 258 Mont. 414, 417, 852 P.2d 676, 678. To make a clearly erroneous determination, we apply the three-part test adopted in Interstate Production Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 322-23, 820 P.2d 1285, 1287.

First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of evidence. [Citations omitted] Third, if substantial evidence exists and the effect of the evidence as not been misapprehended, the Court may still find that “ ‘[A] finding is “clearly erroneous” when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.’ ” U.S. v. U.S. Gypsum Co. (1948), 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746.

We have reviewed the record and, in light of the District Court’s determination that Eleanor lacked credibility, we conclude substantial evidence exists to support the District Court’s finding of general disclosure on the part of Everett to Eleanor. We further conclude this evidence has not been misapprehended nor has a mistake been committed.

Although, here, disclosure was not detailed, we agree with the District Court’s conclusion that the requirements of § 72-2-102, MCA (1979) — in particular, fair disclosure — were complied with under the facts of this case. In making this determination, the District Court properly relied on Lopata, 641 P.2d at 955-56, which was directly on point both factually and legally.

As the Dissent points out, and as we also point out above, this case could have easily been avoided if the parties had included a list of their assets and values in the agreement. The fact is, however, they did not and there is nothing in § 72-2-102, MCA, that requires a list — a point that the Dissent fails to acknowledge. With no support in the record, save Eleanor’s self-serving testimony which the trial judge found not credible, the Dissent presumes that Everett did not fairly disclose his assets and values to her and, apparently, in some unexplained way took advantage of her lack of business acumen. There is simply no basis for such a presumption. Eleanor signed an agreement in which she, in writing, acknowledged that there had been full disclosure. While she now claims she knew at the time that there was not full disclosure, she nevertheless also admits that she did not speak up when Everett stated to Mr. Gunderson that there had been full disclosure. She voluntarily signed the agreement that was presented to her. There is nothing in the record that indicates Eleanor was forced to sign the agreement, that she requested more time to consider and study the agreement or that she was precluded from retaining her own counsel to review the agreement and advise her of the consequences of signing it. She admits that she learned of the nature of what she had given up under the agreement while Everett was still alive, yet she took no legal action to set the agreement aside or challenge it, until after Everett’s death. There is nothing in the record that indicates that, assuming arguendo, there was not fair disclosure, that Eleanor tried to get more information about Everett’s estate or that she even inquired further of him in that regard before signing the agreement.

In short, while criticizing the result of our opinion as creating a duty between potential spouses to question each other about their assets (the very duty that § 72-2-102, MCA, seems to contemplate), the Dissent’s position ignores the statute and, rather, attempts to justify Eleanor for failing to demand fair disclosure when, according to her, she knew it had not been made; for knowingly concurring with the misrepresentation of fair disclosure in the written agreement; and, finally, for attempting to take advantage of her own misconduct at a time when Everett is no longer alive to defend himself or his estate. That approach is not supportable on the facts here, as a matter of law or in basic fairness.

Finally, Eleanor argues the applicability of the Uniform Prenuptial Agreement Act adopted by Montana in 1987. We note the act was not in force at the time this prenuptial agreement was entered into, and Eleanor has not cited us to any authority that would require us to apply the act. Without deciding whether or not the act does apply, based upon.the facts of this case and the District Court’s findings, its application would not change the result here in any event.

We hold the District Court did not err in determining the prenuptial agreement between Eleanor and Everett was valid, thus, precluding Eleanor from collecting her elective share of Everett’s estate. We affirm.

JUSTICES GRAY, HUNT and TRIEWEILER concur.

JUSTICE LEAPHART,

dissenting.

I dissent from the majority opinion which, with no evidence that there was actually a disclosure of assets, finds “fair disclosure.” With this decision, Montana takes a step beyond other jurisdictions in upholding a prenuptial agreement based on a mere recitation of disclosure. This case has none of the circumstances and background that have led other courts to find “general disclosure” based on a recitation of disclosure satisfactory. In so deciding, we establish a policy of inquiry rather than disclosure — we create a duty to question future spouses about their assets and forthrightness, rather than imposing a duty to openly and honestly disclose information to a future spouse.

The dispute in this case could easily have been avoided if the parties had included a list of their assets and values in the prenuptial agreement. However, Eleanor and Everett’s prenuptial agreement contains only a recital of disclosure with no attached list of assets or values. Even though Eleanor had only dated Everett for six months, the District Court concluded that she must have known that he owned his house and had a substantial retirement fund. Based upon these unfounded assumptions, the court concludes that a bare recitation of disclosure constitutes “fair disclosure” under § 72-2-102, MCA. However, in reviewing the facts of the case, there is nothing to support the District Court’s finding that Eleanor had a general knowledge of Everett’s assets.

Eleanor testified that Everett did not disclose his assets to her before signing the prenuptial agreement. The agreement was prepared by Everett’s attorney Mr. Gunderson. Mr. Gunderson testified that at the fifteen minute meeting to discuss and sign the prenuptial agreement, neither he nor Everett disclosed Everett’s assets with Eleanor. Eleanor was not represented by counsel, nor had she seen or read the agreement before the meeting. Eleanor testified that the rights she waived in the prenuptial agreement were not explained to her by Gunderson or Everett. Understandably, she did not comprehend the rights she waived as neither the elective share nor allowances are easily or commonly understood principles. Eleanor had known Everett only six months before she signed the prenuptial agreement the day before she and Everett were married. There is no indication that Eleanor had any independent source of information regarding Everett’s assets. Eleanor had no independent knowledge of Everett’s employment or the intricacies of his employer’s retirement plans.

Eleanor’s education and experience did not provide her with a background in business and investment affairs. She did not complete high school. She has never made more than $5,000 a year. Her employment history as a realtor did not justify the District Court’s assumption that she must have known about Everett’s retirement fund. Even if, as the District Court assumed, she knew that Everett owned his home and had a retirement fund, there is no way she could have had any idea of their values without some disclosure by Everett. The house could have been heavily mortgaged and his retirement fund could have been worth anywhere from a few thousand to several hundred thousand dollars.

Based on these facts, the District Court’s conclusion that “there was at least a general disclosure of the assets and income capacity of Everett prior to marriage which would constitute a ‘fair disclosure’ under Section 72-2-103 MCA,” is not supported by substantial evidence. The District Court, in finding it “inconceivable” that Eleanor did not know that Everett owned his home and that she must have, or should have known, that as a stockbroker for several decades Everett would have a retirement fund, imposes on Eleanor a level of knowledge that is not supported by the evidence, her background or education. In agreeing with this assumption, this Court imposes a requirement that everyone on the threshold of signing a prenuptial agreement have a thorough understanding of professional upper middle class financial planning. In this world of economic and cultural diversity, this is an unreasonable imposition.

The Court errs in affirming that there was a general disclosure of assets, when it is clear from the record there was no disclosure, general or otherwise. Rather, the record reveals nothing more than an unfulfilled recital of disclosure and the District Court’s unreasonable assumption that Eleanor should have known as a matter of general knowledge, that Everett had a retirement fund of unknown value.

In Schumacher v. Schumacher (Wis. 1986), 388 N.W.2d 912, 915, the Wisconsin Supreme Court pointed out that, when the parties to a prenuptial agreement do not fairly and reasonably disclose their actual assets to one another, independent knowledge of one another’s financial status may substitute for fair and reasonable disclosure. Nonetheless, such independent knowledge must be more than a general knowledge of the other’s assets and their value. As an illustration, the court stated that if one party surmises that the other has a pension, that conjecture is not the equivalent of knowing that the other party has both a pension and an annuity plan with a total value in excess of $60,000. Only actual knowledge of these facts, the court emphasized, will suffice.

Montana is now alone in holding that the test of “fair disclosure” can be satisfied with a mere recitation of disclosure in the absence of any financial information from independent sources or other mitigating circumstances. Most courts agree, the disclosure of assets necessary to validate a prenuptial agreement can be general and need not be an exact detailed disclosure. However, disclosure does need to approximate the parties’ net worth so that they can make an intelligent decision regarding the agreement. See, e.g. Nanini v. Nanini (Ariz. Ct. App. 1990), 802 P.2d 438; Friedlander v. Friedlander (Wash. 1972), 494 P.2d 208; Laird v. Laird (Wyo. 1979), 597 P.2d 463. In fact, the case relied on by this Court, the District Court, and Everett’s children, In re Estate of Lopata (Colo. 1982), 641 P.2d 952, 955, states: “Fair disclosure contemplates that each spouse should be given information, of a general and approximate nature, concerning the net worth of the other.” Yet in the instant case, there is no indication that Everett provided any financial information to Eleanor. Rather, the Court has required her to glean this information through her intuition or perhaps through osmosis. Generally speaking, a written disclosure will be the more reliable method.

In Lopata, the court looked at the education, background, and business experience of Mrs. Lopata and found that she was “well versed in day-to-day business affairs and was accustomed to consulting professionals in matters of law, tax, and accounting.” 641 P.2d at 954. Mrs. Lopata had one year of college education, had operated a retail business, participated in an investment club, had her income tax returns professionally prepared, and she had been the administrator of her first husband’s estate. Lopata, 641 P.2d at 954. The court also recognized that adequate provision for her support had been made by the prenuptial agreement and weighed the fairness of that provision in upholding the prenuptial agreement. These circumstances are not present in the instant case. Eleanor’s background is not comparable to Mrs. Lopata’s and if the prenuptial agreement stands, Eleanor gets no support at all from Everett’s estate.

In Lopata, the wife’s testimony regarding disclosure was barred under Colorado’s dead man statute. Lopata, 641 P.2d at 956. Although Montana does not have a dead man statute, the District Court, nonetheless, found that Eleanor’s testimony was not particularly credible because she was the only witness still alive. The irony, of course, is that if there were a written disclosure, the parties and the court would not be put in the position of presenting or relying upon self serving testimony. Under this Court’s holding herein, such disputes will necessarily be resolved through after the fact credibility battles rather than contemporaneous documentation. As it is, Eleanor testified that there was no disclosure and her testimony rebuts any presumption that adheres to the agreement’s bare recitation of disclosure.

The District Court faults Eleanor for conceding in an earlier dissolution proceeding, that the prenuptial agreement was “straightforward and simple.” This Court also finds this concession persuasive in holding that the agreement was not ambiguous. I agree that there was no ambiguity in what the agreement did provide. As Eleanor’s attorney admitted, the agreement straightforwardly applied in the event of death, not dissolution. The problem presented here, however, pertains not to what the agreement says, but rather, what it does not say. It does not say what assets and values are being disclosed.

In sum, our decision applies none of the criteria other courts have considered in determining whether the spouse knew or should have known of the other’s assets, i.e.: a previous business relationship (In re Marriage of Knoll (Or. Ct. App. 1983), 671 P.2d 718; Pajak v. Pajak (W. Va. 1989), 385 S.E.2d 384); evidence of oral disclosure (In re Estate of Hill (Neb. 1983), 335 N.W.2d 750; In re Estate of Hartman (Pa. Super. Ct. 1990), 582 A.2d 648); knowing the person for more than two years before signing an agreement (In re Estate of Stever (Colo. 1964), 392 P.2d 286; In re Parish’s Estate (Iowa 1945), 20 N.W.2d 32; In re Neis’ Estate (Kan. 1950), 225 P.2d 110; Laird, 597 P.2d 463); or living near each other (In re Estate of Broadie (Kan. 1972), 493 P.2d 289; In re Estate of Youngblood (Mo. 1970), 457 S.W.2d 750). Instead, this Court does as no other court has chosen to do. It assumes that a person of limited financial expertise who has known the other party for a mere six months, who has no background in estate matters, is unrepresented by counsel and who has fifteen minutes to read and question the premarital agreement before signing it the day before the wedding, has sufficient knowledge and information to satisfy the requirements of “fair disclosure.”

As we and the District Court recognize, the issue presented by this case could have been easily solved by including a list of assets and their values in the prenuptial agreement. Such a list ensures disclosure and eliminates the sort of testimony presently confronting us. Without a written list, we must weigh testimony which recalls events from 1981, is self-serving, and only arises upon the death of one of the parties insuring the absence of the deceased party’s testimony. Clearly the preferable policy is to encourage the benedicts of the world to actually disclose their assets and thereby avoid unseemly postmortem battles as to what was or was not disclosed on the threshold of marriage. This Court, however, sends the clear message that an intended spouse, when asked “Have you disclosed all of your finances and assets?” can keep his fingers crossed while responding in the affirmative.

The Court’s holding opens the door to hiding assets from a future spouse. Instead of requiring actual and voluntary disclosure, this holding will require that prospective spouses investigate and inquire as to their future spouse’s financial affairs and holdings. In many instances, the less affluent spouse will not have the sophistication or know-how to make the appropriate inquiries. He/she will thus be left at the mercy of the other spouse’s paying lip service to “fair disclosure” § 72-2-102, MCA, a legal requirement which we have effectively reduced to voluntary compliance.


text:
    IN RE THE MARRIAGE OF: ANDREA KATHRYN MILLER, Petitioner and Respondent, and JOHN STANLEY MILLER, Respondent and Appellant.
    No. 94-465.
    Submitted on Briefs May 25, 1995.
    Decided September 21, 1995.
    52 St.Rep. 977.
    902 P.2d 1019.
    273 Mont. 286.

      For Appellant: Mark E. Jones, Missoula.
    For Respondent: P. Mars Scott, Mulroney, Delaney & Scott, Missoula.
   JUSTICE NELSON

delivered the Opinion of the Court.

Respondent, Andrea Miller (Andrea), filed a motion with the District Court of the Fourth Judicial District, Missoula County, to modify the parties’ Decree of Dissolution and to award her certain property of the marital estate that had been awarded to Appellant, John Miller (John). The District Court issued an Opinion and Order modifying the Decree of Dissolution and re-allocating various debts and property. John appeals. We affirm in part and reverse in part.

We address the following issues on appeal:

1. Did the District Court err when it modified the parties’ Decree of Dissolution and Marital Settlement Agreement?

2. Did the District Court err by not awarding attorney fees to either party?

The District Court dissolved the marriage of Andrea and John on September 22, 1992. The parties had previously entered into a Marital Settlement Agreement for Division of Property, Child Custody, Support, Visitation and Maintenance. The District Court found that this agreement was not unconscionable and incorporated the agreement into the Decree of Dissolution.

The agreement set forth the division of property and debts of the parties’ marital estate, custody of the parties’ minor children, child support, visitation and maintenance. John represented to the District Court that if he were awarded certain income-producing property of the marital estate amounting to approximately $23,650.00, he would pay the $23,389.72 in jointly held debts of the marital estate. The property was so awarded, but John has failed to pay the debts or make arrangements to pay them. Because these debts were joint, the parties’ creditors sought, and continue to seek, collection of these debts from Andrea.

On May 17,1993, Andrea filed a motion with the District Court for an order modifying the parties’ Decree of Dissolution containing the Marital Settlement Agreement. At the May 25, 1993 hearing on her motion, Andrea testified she would pay the joint debts of the marital estate if she were awarded the income-producing property that had previously been awarded to John.

John did not appear at the hearing and on June 9,1993, the District Court awarded Andrea the property she requested and ordered her to pay the joint debts of the marital estate. On July 16, 1993, John moved the District Court for a re-hearing on Andrea’s motion alleging that he had not received adequate notice of the May 25th hearing. In addition, John filed a Chapter 13 bankruptcy petition on July 30, 1993, which imposed an automatic stay on his property.

On September 1,1993, the District Court set aside the June 9,1993 Findings of Fact, Conclusions of Law and Order and on September 13, 1993, John filed his response to Andrea’s Motion to Modify. On February 8, 1994, the Bankruptcy Court dismissed John’s Chapter 13 petition for bankruptcy. That same day John filed a Chapter 11 petition in bankruptcy court, reimposing the automatic stay. On February 23, 1994, Andrea filed a motion for the District Court to reissue or reconsider the Motion to Modify the Decree, unaware that John had refiled under Chapter 11.

On May 4, 1994, the Bankruptcy Court lifted the automatic stay on John’s property, permitting Andrea to seek modification of the Decree of Dissolution in District Court. On May 12, 1994, Andrea again moved the District Court to renew her Motion to Modify the Decree of Dissolution. A hearing regarding this motion was held on July 12, 1994. Both Andrea and John were present and testified regarding payment of the joint debts.

On July 26, 1994, the District Court issued an Opinion and Order modifying the Decree of Dissolution and re-allocating various debts and property. John appeals this Opinion and Order.

Issue 1

Did the District Court err when it modified the parties’ Decree of Dissolution and Marital Settlement Agreement?

The District Court concluded that John’s representations that he would pay certain joint debts of the marital estate if he were awarded certain property of the marital estate and his subsequent failure to pay those debts constituted extrinsic fraud. In addition, the court concluded that if extrinsic fraud is committed upon the court in violation of a marital settlement agreement, the power of the court to set aside the agreement is not confined by the terms of the agreement and the court may order such relief as is equitable to the non-fraudulent party.

We review a district court’s conclusions of law to determine whether the court’s interpretation of the law was correct. In re Marriage of Barnard (1994), 264 Mont. 103, 106, 870 P.2d 91, 93.

John contends that the District Court erred when it allowed Andrea’s motion for modification to come before the court since it was filed in excess of the 60-day time limit allowed by Rule 60(b)(3), M.R.Civ.P. Moreover, John argues that the District Court erred in concluding that his actions constituted extrinsic fraud.

In order to modify or revoke a final property disposition, § 40-4-208, MCA, requires in pertinent part:

(3) The provisions as to property disposition may not be revoked or modified by a court, except:
(a) upon written consent of the parties; or
(b) if the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state. [Emphasis added.]

Rule 60(b)(3), M.R.Civ.P., allows, upon motion, relief from a final judgment, order, or proceeding for fraud, whether intrinsic or extrinsic. However, the motion must be made not more than 60 days after the judgment, order or proceeding was entered. In this case, Andrea’s original motion to modify the decree was not made until almost eight months after the judgment was entered. Therefore, Andrea’s motion was not timely filed to qualify for relief under Rule 60(b)(3), M.R.Civ.P.

Nevertheless, the last sentence of Rule 60(b), M.R.Civ.P., provides several avenues of relief from a judgment whereby no such time limitation is imposed. This residual clause of Rule 60(b), M.R.Civ.P. provides:

This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as may be required by law, or to set aside a judgment for fraud upon the court.

Thus, the three separate avenues for relief from a judgment under this clause are: lack of personal notification, fraud upon the court, or an independent action for extrinsic fraud. See Rule 60(b), M.R.Civ.P.; Salway v. Arkava (1985), 215 Mont. 135, 140, 695 P.2d 1302, 1305. Lack of personal notification is inapplicable to the present case and will not be addressed herein. Accordingly, we examine the present case to determine whether sufficient grounds for relief exist under the residual clause for fraud upon the court or for an independent action for extrinsic fraud.

Fraud upon the court embraces only that species of fraud which subverts or attempts to subvert the integrity of the court itself, or fraud perpetrated by officers of the court so that the judicial machinery cannot perform in an impartial manner. Filler v. Richland County (1991), 247 Mont. 285, 289, 806 P.2d 537, 539 (citing Salway, 695 P.2d at 1306). Fraud upon the court includes only the most egregious conduct, such as bribery of a judge or member of the jury; the fabrication of evidence in which an attorney has been implicated; or the employment of counsel to influence the court. Filler, 806 P.2d at 539; Salway, 695 P.2d at 1306. We have repeatedly held that fraud between the parties or perjury at trial is not fraud upon the court. Wise v. Nirider (1993), 261 Mont. 310, 316, 862 P.2d 1128, 1132; Traders State Bank of Poplar v. Mann (1993), 258 Mont. 226, 236, 852 P.2d 604, 610; Brown v. Small (1992), 251 Mont. 414, 421, 825 P.2d 1209, 1213; Salway, 695 P.2d at 1306. Thus, John’s conduct does not rise to a level which is egregious enough to be characterized as fraud upon the court.

Courts of general jurisdiction have always possessed the power to entertain independent, equitable actions to set aside judgments, fraud being the chief, although not the exclusive, basis for such an independent action. Salway, 695 P.2d at 1305. Montana adheres to the general rule that the fraud must be extrinsic, as opposed to intrinsic, to support an independent action for fraud under the residual clause of Rule 60(b). Filler, 806 P.2d 537, 539.

Extrinsic fraud has been defined as some intentional act or conduct by which the prevailing party has prevented the unsuccessful party from having a fair submission of the controversy. Salway, 695 P.2d at 1306 (citing Pilati v. Pilati (1979), 181 Mont. 182, 193, 592 P.2d 1374, 1380). Extrinsic fraud is collateral to the matters tried by the court, but does not include fraud in the matters on which the judgment was rendered. See Salway, 695 P.2d at 1306 (citing Hall v. Hall (1924), 70 Mont. 460, 467, 226 P. 469, 471.)

The District Court concluded that John had committed extrinsic fraud by representing that he would pay certain joint debts of the marital estate and then failing to pay those debts. However, neither perjured testimony, nor false or fraudulent allegations used in obtaining a judgment constitute extrinsic fraud. State Compensation Ins. Fund v. Chapman (1994), 267 Mont. 484, 490, 885 P.2d 407, 411 (citing Traders State Bank, 852 P.2d at 610). False or fraudulent representations or concealments made during court proceedings constitute intrinsic fraud and are not grounds for reopening a decree or judgment by an independent action. State Fund, 885 P.2d at 411; Salway, 695 P.2d at 1307.

In the past we have wrongfully characterized intrinsic fraud in marital dissolution cases as either fraud upon the court or extrinsic fraud and allowed a decree or judgment to be reopened on that basis. See In re Marriage of Lyman (1988), 233 Mont. 283, 762 P.2d 203 (misrepresentations or concealment of assets); Witbart v. Witbart (1985), 216 Mont. 178, 701 P.2d 339 (failure to disclose certain debts owed by parties); In re Marriage of Madden (1984), 211 Mont. 237, 683 P.2d 493 (failure to disclose balloon payment due on house and value of husband’s pension); Pilati v. Pilati (1979), 181 Mont. 182, 592 P.2d 1374 (failure to make a full and accurate disclosure of all assets); In re Bad Yellow Hair (1973), 162 Mont. 107, 509 P.2d 9 (misrepresenting facts or concealment of material facts). To the extent that these cases used this proposition, they are overruled. Hereafter, marital dissolution cases will be treated the same as all other cases under Rule 60(b), M.R.Civ.P.

As a result, a decree or judgment in a marital dissolution case, as with judgments in other types of cases, may not be set aside based on a motion or petition claiming intrinsic fraud filed more than 60 days after it was entered. Rule 60(b)(3); State Fund, 885 P.2d at 411. To allow a motion for intrinsic fraud under the residual clause of Rule 60(b), M.R.Civ.P., would negate the intent of the 60-day time limit of subsection (3) of that rule.

It is evident that John’s misrepresentations do not constitute extrinsic fraud or fraud upon the court and are thus not grounds for relief under the residual clause of Rule 60(b). Although grounds may have existed for a motion pursuant to Rule 60(b)(3), this does not mean that the judgment can now be set aside for the same reason after the time for post-trial motions has expired.

Accordingly, we conclude that the allegations of fraud relied upon by Andrea fall short of what is legally required to vacate a final judgment pursuant to the residual clause of Rule 60(b), M.R.Civ.P. Therefore, we hold that the District Court erred when it modified the parties’Decree of Dissolution and Marital Settlement Agreement and we reverse the District Court on this issue.

Issue 2

Did the District Court err by not awarding attorney fees to either party?

The parties’ Marital Settlement Agreement, which was incorporated into the dissolution decree, provided that in the event either party instituted legal proceedings to enforce, modify or interpret any provision of the agreement, “the court, as a cost of suit, shall award reasonable attorney’s fee [sic] to the prevailing party.” On the basis of this provision, both John and Andrea contend that the prevailing party is entitled to reasonable attorney fees in this action and that the court erred when it ordered each party to bear their own costs and attorney fees.

A review of the record reveals that Andrea did not request attorney fees as a form of relief in her motion for modification. Neither did John request attorney fees in his response to Andrea’s motion to modify. The issue of attorney fees was raised for the first time on appeal of the District Court’s order. When the issue of attorney fees is omitted from the pleadings, and no evidence is presented on that issue at trial, the issue is outside the purview of the District Court. In re Marriage of Hill (1994), 265 Mont. 52, 60, 874 P.2d 705, 710 (citing Naftco Leasing Ltd. v. Finalco, Inc. (1992), 254 Mont. 89, 835 P.2d 728). Accordingly, the District Court did not err in failing to award attorney fees to either party and, instead, ordering each party to pay their own costs and attorney fees.

Affirmed in part and reversed in part.

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


author: JUSTICE TRIEWEILER

text:
    CNA INSURANCE COMPANIES, Petitioner and Appellant, v. KENNETH RAYLON DUNN, UNINSURED EMPLOYERS’ FUND, and BIG TRUCK PRODUCTIONS, Respondents and Respondents.
    No. 95-170.
    Submitted on Briefs August 3, 1995.
    Decided September 21, 1995.
    52 St.Rep. 981.
    902 P.2d 1014.
    273 Mont. 295.

      For Appellant: Todd A. Hammer, Warden, Christiansen, Johnson & Berg, Kalispell.
    For Respondent: Chris J. Ragar, Attorney at Law, Bozeman (for Dunn); Kevin Braun, Department of Labor & Industry, Helena; Beth Heckscher, Big Truck Productions, Hollywood, California.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The petitioner, CNA Insurance Companies, filed a petition for declaratory judgment in the Workers’ Compensation Court of the State of Montana in which it sought a determination that it provided workers’ compensation insurance coverage to Big Truck Productions for injuries sustained by Kenneth R. Dunn. The Workers’ Compensation Court concluded that although it had jurisdiction to decide the issue raised by CNA’s petition, it was not required to do so, and dismissed the petition without prejudice. CNA appeals from the order and judgment of the Workers’ Compensation Court. We affirm the Workers’ Compensation Court.

Although a number of issues are raised by CNA on appeal, we find the following issues dispositive.

1. Did the Workers’ Compensation Court have either exclusive or concurrent jurisdiction to determine whether Dunn’s employer was insured against workers’ compensation claims at the time of Dunn’s work-related accident and injury?

2. Should sanctions be imposed against CNA for filing a frivolous appeal?

FACTUAL BACKGROUND

In pleadings filed in either the Workers’ Compensation Court or the District Court for the Third Judicial District in Powell County, Dunn alleged the following facts:

On August 17,1993, Dunn suffered an industrial injury arising out of and in the course and scope of his employment with Big Truck. Big Truck first informed him that it was covered by a workers’ compensation policy through its payroll company, Axium. Next, Big Truck asserted that Dunn was not entitled to compensation benefits because he had signed a release absolving his employer from responsibility for those benefits.

After his injury, Dunn learned from the State Fund that Big Truck’s policy with Axium did not cover him. He also learned from the Montana Department of Labor that it had no notice/information/ or election of workers’ compensation coverage for Big Truck at any time in the State of Montana. Therefore, on February 16,1994, Dunn filed an independent action against Big Truck in Powell County District Court pursuant to § 39-71-515, MCA. Among other allegations, Dunn alleged that he was an employee of Big Truck when, on August 17, 1993, he suffered an industrial injury arising out of and in the course and scope of his employment; that Big Truck was not, at that time, properly insured against workers’ compensation claims; and that, therefore, Big Truck was liable pursuant to § 39-71-515, MCA, for damages in an amount equal to the benefits Dunn would have received had Big Truck been insured.

Dunn’s District Court complaint was served on Big Truck on March 23, 1994. Two days later, Big Truck, for the first time, asserted that it was covered against Drum’s claim by CNA.

On December 15, 1994, Dunn filed an amended complaint in District Court in which he added claims of fraud and negligent misrepresentation.

On November 22, 1994, after receiving notice of Dunn’s proposed amendment, the same attorney who was defending Big Truck in the District Court action filed a petition in the Workers’ Compensation Court on behalf of CNA. In that petition, CNA sought a determination that its policy provided workers’ compensation insurance coverage to Big Truck for the injury alleged by Dunn.

After appropriately noting that the relief sought by CNA was “odd” because “[a]n insurer is free to admit liability without permission or order of the Court. It is not harmed if the injured worker refuses to accept benefits,” the Workers’ Compensation Court dismissed CNA’s petition. It concluded that although it had jurisdiction to decide the issues raised, it was not required to do so and in exercising its discretion not to do so, it observed that:

The only foreseeable impact of a decision by this Court is the impact it would have in the district court action. Indeed, the present petition appears to be a calculated attempt to circumvent a determination by the district court.

ISSUE 1

Did the Workers’ Compensation Court have either exclusive or concurrent jurisdiction to determine whether Dunn’s employer was insured against workers’ compensation claims at the time of Dunn’s work-related accident and injury?

We review the Workers’ Compensation Court’s conclusions of law to determine whether they are correct. Stordalen v. Ricci’s Food Farm (1993), 261 Mont. 256, 258, 862 P.2d 393, 394; Martelli v. Anaconda-Deer Lodge County (1993), 258 Mont. 166, 168, 852 P.2d 579, 580.

In Bohmer v. Uninsured Employers’ Fund (1994), 266 Mont. 289, 292, 880 P.2d 816, 818, we held that when a worker sues an uninsured employer because of a work-related injury pursuant to § 39-71-515, MCA, the action and all its “integral elements” are the exclusive jurisdiction of the district court. The Workers’ Compensation Court distinguished Bohmer by concluding that it was not asked to exercise jurisdiction over an action commenced pursuant § 39-71-515, MCA, but rather, it was being asked to determine an insurer’s liability for benefits. It held that while CNA’s petition may raise questions of fact common to those raised in the District Court action, the relief sought by CNA was independent of that action. CNA agrees with the Workers’ Compensation Court’s conclusion that Bohmer is inapplicable, but contends that the Workers’ Compensation Court had exclusive jurisdiction over this matter and erred when it held that the Powell County District Court also had jurisdiction. Dunn, on the other hand, contends that pursuant to our decision in Bohmer, the District Court had exclusive jurisdiction to decide whether Big Truck was insured at the time of his injury.

In Bohmer, the injured employee sued his employer in district court as an uninsured employer. The employer agreed it was uninsured. The employee then petitioned the Workers’ Compensation Court to determine the benefits to which he was entitled. Bohmer, 880 P.2d at 817. This Court was, therefore, required to reconcile the Workers’ Compensation Court’s statutory jurisdictional grant at § 39-71-2905, MCA, with that jurisdiction provided to the district court pursuant to §§ 39-71-515 and -516, MCA.

Section 39-71-515(1), MCA, provides:

An injured employee or the employee’s beneficiaries have an independent cause of action against an uninsured employer for failure to be enrolled in a compensation plan as required by this chapter.

Section 39-71-516, MCA, provides in part that “[a]n injured employee ... pursuing an independent cause of action pursuant to 39-71-515 must bring such action in the district court...” (Emphasis added.)

Prior to the commencement of this action in the Workers’ Compensation Court, Dunn had filed suit in district court pursuant to § 39-71-516, MCA, based on his allegation and presumed belief that Big Truck was an uninsured employer. An uninsured employer is defined in § 39-71-501, MCA, as “an employer who has not properly complied with the provisions of 39-71-401 [requiring an employer to elect to be bound by a plan].” Dunn alleged that before filing the suit he learned from the Department of Labor that it had no notice/information/or election of workers’ compensation coverage for Big Truck at any time in the State of Montana. This was a sufficient factual basis upon which to invoke the District Court’s jurisdiction pursuant to § 39-71-516, MCA. Once the District Court’s jurisdiction was properly invoked, it had exclusive jurisdiction over all of the “integral elements” of Dunn’s claim.

CNA contends that Bohmer is distinguishable because there the extent of benefits was at issue while here the uninsured status of the employer is at issue. These distinctions make no difference. In Bohmer, we found that once an independent cause of action pursuant to § 39-71-515, MCA, is brought in district court, that district court has exclusive jurisdiction over any issues which are an integral part of the cause of action.

We reasoned that:

The interpretation which harmonizes and gives effect to both § 39-71-516, MCA, and § 39-71-2905, MCA, [providing that, “the workers’ compensation judge has exclusive jurisdiction to make determinations concerning disputes under chapter 71, except as provided in ... 39-71-516”] is that ... the legislature intended to prevent the Workers’ Compensation Court from exercising jurisdiction over the new cause of action over which it specifically vested jurisdiction in the district courts....
....
Bohmer’s argument that the jurisdiction vested in the district courts pursuant to § 39-71-516, MCA, is confined to the liability issues raised in § 39-71-515(2), MCA, is not persuasive. Such an interpretation would limit the District Court’s jurisdiction to questions relating to Lybeck’s failure to enroll in a compensation plan and would exclude the damages issue which is an integral element of the cause of action.

Bohmer, 880 P.2d at 818.

Section 39-71-515, MCA, provides a cause of action which includes as an essential element the employer’s failure to insure itself against workers’ compensation claims. In order for Dunn to prevail in the District Court, he must prove that Big Truck was uninsured at the time of his injury.

Permitting piecemeal litigation of the various issues involved in Dunn’s District Court action would be a terrible waste of judicial resources and the parties’ time and money. But most importantly, it would fly in the face of the district court’s exclusive jurisdiction which is clearly provided for in § 39-71-516, MCA.

CNA also contends that the Workers’ Compensation Court’s dismissal of its petition effectively denied its constitutional right to full legal redress pursuant to Article II, Section 16, of the Montana Constitution, and violated its rights to due process and equal protection of the law in violation of Article II, Sections 17 and 4, of the Montana Constitution.

The most appropriate response to this claim is to echo the Workers’ Compensation Court’s observation that it is indeed “odd.” First, since when does an insurer have a greater interest in providing coverage than the employer (represented by the same attorney) has in obtaining coverage? Second, an insurer does not need a court order to admit liability and tender benefits. If the employee does not want to accept them, how is the insurer damaged? Finally, if, for some reason not readily apparent to this Court, CNA has a greater or different interest in the resolution of the coverage issue than Big Truck has, there are numerous procedural avenues available by which to involve itself in the pending District Court action. Through intervention, inter-pleader, or permissive joinder CNA could have seen that its interests were adequately represented in the District Court action. See Rules 20(a), 22, and 24, M.R.Civ.P. CNA was provided plenty of due process. Having not concerned itself with any of these available remedies, the Workers’ Compensation Court’s observation about CNA’s probable motivation is well taken.

While we disagree with the Workers’ Compensation Court’s conclusion that it had concurrent jurisdiction to decide the issue presented in CNA’s petition, we conclude that for the stated reasons, the court’s order dismissing CNA’s petition was correct. ‘We will affirm a court’s correct result regardless of its reasoning.” Bohmer, 880 P.2d at 817. Therefore, the order and judgment of the Workers’ Compensation Court are affirmed.

ISSUE 2

Should sanctions be imposed against CNA for filing a frivolous appeal?

As a final matter, Dunn requests the imposition of sanctions against CNA pursuant to Rule 32, M.R.App.P. Sanctions on appeal, in the form of damages, are appropriate if this Court “is satisfied from the record and the presentation of the appeal ... that the same was taken without substantial or reasonable grounds ...” Rule 32, M.R.App.P.

In Reilly v. Farm Credit Bank of Spokane (1993), 261 Mont. 532, 535, 863 P.2d 420, 422, we stated that “[w]hen an appeal is entirely unfounded and causes delay, the respondent is entitled to reasonable costs and attorney’s fees.” In this case, even the original petition in the Workers’ Compensation Court was unnecessary and appears to have been brought for purposes of delay.

We agree with the Workers’ Compensation Court that CNA’s sole motivation for its petition, and subsequently for this appeal, is to circumvent determination of this issue by the District Court. As discussed in response to Issue 1, CNA could have assured that its interests were represented by intervention in the civil action already commenced. Instead, its attorney, who is also the sole attorney of record for Big Truck in the District Court action, has imposed upon the Workers’ Compensation Court, and now this Court, issues that should have been disposed of in the District Court action.

In addition, Dunn has been caused additional and unnecessary expense and delay. Whether his claim has merit is not the point. The point is that he has a right to have it resolved in the most expeditious and least expensive manner possible. CNA, with its greater resources, has no right to use the courts of this state to frustrate that objective.

This Court is “burdened by a heavy volume of business and the problem is needlessly aggravated when frivolous appeals are taken.” Furbee v. Vantage Press, Inc. (D.C. Cir. 1972), 464 F.2d 835, 837.

We, therefore, conclude that this is a proper case in which to impose sanctions in the amount of $500 against CNA and its attorney for a frivolous appeal.

The order of the Workers’ Compensation Court which dismissed CNA’s petition is affirmed. Sanctions, as set forth above, are imposed and this matter is remanded to the Workers’ Compensation Court for entry of judgment consistent with this opinion.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ERNESTO RENDON, Defendant and Appellant.
    No. 95-063.
    Submitted on Briefs August 10, 1995.
    Decided September 21, 1995.
    52 St.Rep. 985.
    903 P.2d 183.
    273 Mont. 303.

      For Appellant: James B. Obie, Attorney at Law, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena; Mike McGrath, Lewis and Clark County Attorney, Vicki Frazier, Deputy County Attorney, Helena.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Defendant Ernesto Rendon was charged by information, filed in the District Court for the First Judicial District in Lewis and Clark County, with felony assault, in violation of § 45-5-201(1)(a) and (3), MCA. Following a nonjury trial, he was found guilty of the crime charged. Rendon was sentenced to serve five years in the Montana State Prison. However, his sentence was suspended, based on several conditions. Rendon appeals his conviction. We affirm the judgment of the District Court.

Rendon raises two issues on appeal:

1. Did the District Court err when it denied Rendon’s motion for mistrial on the basis of an allegation that the victim was coached while on the stand?

2. Did the District Court abuse its discretion when it excluded evidence intended to attack the credibility of the victim’s mother?

FACTUAL BACKGROUND

Ernesto Rendon lived with his girlfriend, Melanie Schmaus, and M.S., her son, for several years. On May 30,1994, Rendon looked after M.S. in their family home while Schmaus worked a 4-11 p.m. shift. Schmaus stayed after work that night and drank several beers with her co-workers. When Schmaus arrived home at around 2 a.m., Rendon told her that her son had been injured earlier in the evening when he hit his head on the coffee table. Schmaus went into M.S.’s bedroom to check on him, but Rendon told her to let the child sleep. While in the bedroom, Schmaus could see a large bruise across the side of M.S.’s face.

When Schmaus returned from work the next day and examined M.S.’s bruises, she was told by M.S. that Rendon had struck him.

The following day, on June 1, 1994, Schmaus took M.S. to the emergency room at St. Peter’s Hospital, where he was examined by James Hoyne, M.D., the emergency room doctor.

Dr. Hoyne testified at trial that when he examined M.S. he had marks on the right side of his face and significant bruises on the left side of his face. Dr. Hoyne described the bruises on the left side of M.S.’s face as “three separate lines approximately an inch wide, separated by half-an-inch, what [sic] appeared to be starting at the cheek and going across the ear towards the forehead.” Dr. Hoyne testified that the bruises were caused by significant force and were consistent with M.S. having been struck by a hand. According to Dr. Hoyne, M.S. told him during the examination that he had been hit in the face. Dr. Hoyne testified that Schmaus was probably in the room at the time, but that M.S. did not need any coaching to describe what had happened to him.

At trial, M.S. testified that Rendon had been mad at him and had “hitted me really fast.” When he was asked to demonstrate what had happened, M.S. used his right hand and swung it toward the left side of his face. M.S. also indicated that Rendon had pushed him.

After the State presented its evidence, Rendon called a witness who testified that M.S. had been coached by a courtroom observer while he gave his testimony. According to the witness, the observer would nod or shake her head in response to the State’s questions, and M.S. would pause and answer consistently with the head motion. On the basis of this testimony, Rendon moved for a mistrial. However, the motion was denied. The District Court stated that based on its observation, the victim did not look to anyone for advice while he gave his testimony. The court also concluded that most of the critical testimony was not in the form of “yes” or “no” answers which could have been coached.

Rendon attempted to introduce evidence at trial to show Schmaus’s intense dislike of and bias against him. It was Rendon’s contention that this bias would indicate that Schmaus would “do everything she can against [Rendon] and lie to whatever extent necessary.” Rendon further claimed that this evidence would suggest that Schmaus had instructed her son to testify falsely against him. The court, however, excluded the evidence, based on its conclusion that it was irrelevant.

ISSUE 1

Did the District Court err when it denied Rendon’s motion for mistrial on the basis of an allegation that the victim was coached while on the stand?

The standard of review for a district court’s denial of a mistrial is whether there is clear and convincing evidence that the court’s ruling is erroneous. State v. Greytak (1993), 262 Mont. 401, 404, 865 P.2d 1096, 1098. This Court has held that a mistrial is appropriate only when there is a demonstration of manifest necessity and where the defendant has been denied a fair and impartial trial. Greytak, 865 P.2d at 1098.

Rendon maintains that the District Court erred when it denied his motion for mistrial based on the alleged coaching of the victim by a courtroom observer. He asserts that he was denied his Sixth Amendment right to confront the witness, whom he contends was actually the courtroom observer. Rendon offers as evidence only the testimony of a witness who observed the alleged coaching. This witness admitted that he did not have a view of M.S. to determine if M.S. was watching the courtroom observer before he responded. The trial judge, on the other hand, noted that he had watched M.S. during his testimony and that he did not appear to be looking for assistance.

Based on the record, we conclude that the District Court did not err when it denied Rendon’s motion for a mistrial. The district court is in the best position to determine whether coaching of a witness has occurred, and if so, has broad discretion to determine whether such coaching has been prejudicial to either party.

The court stated that based on its observation, M.S. was not looking to anyone to aid his testimony. M.S. answered critical questions in complete sentences in his own words. The court also concluded that most of M.S.’s responses were not the type of answers that could have been coached from the audience.

We conclude that there is not clear and convincing evidence that the District Court’s denial of Rendon’s motion for mistrial was erroneous. We affirm the District Court’s denial of Rendon’s motion for mistrial.

ISSUE 2

Did the District Court abuse its discretion when it excluded evidence intended to attack the credibility of the victim’s mother?

The standard of review for district court evidentiary rulings is whether the court abused its discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. The determination of whether evidence is relevant and admissible is left to the sound discretion of the trial judge, and absent a showing of abuse of discretion, will not be overturned. Gollehon, 864 P.2d at 1263.

Rendon contends that the District Court erred when it prohibited him from introducing evidence about the victim’s mother, Melanie Schmaus. The proffered evidence consisted of testimony about the antagonistic relationship between Rendon and Schmaus as illustrated by several specific acts of conduct. Rendon argues that the purpose of the evidence was to establish the bias or motive of Schmaus to testify falsely against him at trial and to influence the testimony of her son.

The District Court excluded the proposed evidence, based on its conclusion that the evidence was irrelevant. Rule 401, M.R.Evid., defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

The District Court took note of the poor relationship between Schmaus and Rendon in its decision, but held that Rendon’s conviction did not depend on Schmaus’s testimony. Schmaus’s testimony was basically foundational and undisputed. Rendon’s conviction was supported primarily by physical evidence which was inconsistent with his version of events and the direct testimony of M.S. Furthermore, since the District Court was already aware of the hostility between Schmaus and Rendon, the proffered evidence would have, at best, been cumulative.

We conclude that the District Court did not abuse its discretion when it excluded evidence designed to attack the credibility of the victim’s mother.

We affirm appellant’s conviction for felony assault.

JUSTICES NELSON, GRAY, HUNT and LEAPHART concur.


text:
    RANDALL MARK RUDOLPH, Petitioner, v. RICK DAY, Administrator, DEPARTMENT OF CORRECTIONS, Respondent.
    No. 95-281.
    Decided August 29, 1995.
    52 St.Rep. 988.
    902 P.2d 1007.
    273 Mont. 309.
   ORDER

Randall Mark Rudolph (Rudolph), pro se, has filed herein his petition for writ of habeas corpus. The Attorney General of the State of Montana and legal counsel for the Department of Corrections has responded on behalf of the State.

In October 1987, Rudolph was convicted after a jury trial, of robbery and sentenced to a term of years at the Montana State Hospital in lieu of prison incarceration. Rudolph was designated a dangerous offender for purposes of parole eligibility. We denied his petition for writ of habeas corpus pending appeal on February 14, 1989, and subsequently confirmed his conviction on direct appeal. State v. Rudolph (1989), 238 Mont. 135, 777 P.2d 296. Rudolph’s petition for federal habeas corpus relief was subsequently denied by both the United States District Court and the United States Court of Appeals for the Ninth Circuit. His motion to reconsider was denied by the United States District Court.

Eight years following his conviction, on June 8,1995, Rudolph filed in this Court the instant petition for writ of habeas corpus. In that petition Rudolph raises three issues:

1. denial of effective assistance of counsel for failure to examine the issue of the show-up identification procedure in light of Stovall v. Denno (1967), 388 U.S. 293;
2. the show-up identification procedure was impermissibly suggestive; and
3. his good time credit was improperly calculated.

At the outset we note that the issue of the pretrial identification procedure was discussed in detail in our opinion on Rudolph’s direct appeal. Rudolph, 777 P.2d at 298-300. Moreover, in denying Rudolph’s motion for reconsideration on April 30, 1994, the United States District Court stated that the Stovall opinion was obviously available to all of the parties dining the original proceedings and that it was, in any event, not the leading case on the point of law at issue — the show-up identification procedure.

Apetition for writ of habeas corpus may be filed to inquire into the cause of imprisonment or restraint. Section 46-22-101, MCA. While habeas corpus is available to determine the legality or illegality of the restraint alleged, Wells v. Stagner (1949), 123 Mont. 26, 31, 207 P.2d 549, 551, the writ is not available to attack the validity of the conviction or sentence of a person who has been adjudged guilty of an offense in a court of record, and who has exhausted his remedy of appeal. Section 46-22-101(2), MCA;Duncan v. State (1990), 243 Mont. 232, 233, 794 P.2d 331, 332.

Issues 1 and 2 in Rudolph’s petition challenge the validity of his conviction and sentence. It is clear that he has been adjudged guilty of an offense in a court of record and, also, that he has exhausted his remedy on appeal. Accordingly, Rudolph’s petition for writ of habeas corpus is barred and is appropriately dismissed. Section 46-22-101(2), MCA.

Notwithstanding that Rudolph’s petition for writ of habeas corpus is specifically barred by statute, we may nevertheless treat his petition as one for post conviction relief. Tecca v. McCormick (1990), 246 Mont. 317, 318, 806 P.2d 11, 12. In doing so, however, we conclude that Rudolph’s claims are untimely. Section 46-21-102, MCA, provides that a petition for post conviction relief “may be filed at any time within five years of the date of conviction.” In this case, Rudolph was convicted in 1987 and accordingly, his June 8,1995 petition for post conviction relief is clearly time-barred under § 46-21-102, MCA.

Furthermore, Rudolph’s second issue, the claim that the show-up identification procedure was impermissibly suggestive, is barred by the doctrine of res judicata inasmuch as that claim was or could have been raised on direct appeal. See Hawkins v. State (1990), 242 Mont. 348, 790 P.2d 990, 992. Accordingly, Rudolph is procedurally barred from raising issues 1 and 2 in his petition for post conviction relief. Unless a post conviction petitioner can demonstrate a fundamental miscarriage of justice (which Rudolph has failed to do here) we will consistently apply the procedural bar. See State v. Baker (1995), [272 Mont. 273], 901 P.2d 54, 58-59.

In his third issue Rudolph claims that he has been improperly awarded good time credits. The record amply demonstrates that Rudolph’s contentions are without merit. The award of good time credits is solely within the discretion of the Department of Corrections and the only applicable limits on the Department are that the grant of good time credits may not exceed the maximum amount permitted by statute. Remington v. Department of Corrections and Human Services (1992), 255 Mont. 480, 844 P.2d 50, 52. Rudolph has been credited with all good time credits which he earned while housed in the secure treatment unit at the Montana State Hospital, from May 27, 1988 to March 15, 1991, and for all good time credits whichhe earned while an inmate atthe Montana State Penitentiary from March 15, 1991 to the present. In addition, Rudolph received credit for all time served since the date of his sentencing as well as the jail credits prior to sentencing. We conclude that he is not entitled to any relief on his claims raised under issue 3, of his petition for writ of habeas corpus.

Accordingly, having reviewed Rudolph’s petition and for the reasons aforestated:

IT IS ORDERED that Rudolph’s petition for writ of habeas corpus as to issues 1 and 2 should be and the same is hereby dismissed; and

IT IS FURTHER ORDERED that, deeming Rudolph’s petition for writ of habeas corpus as to issues 1 and 2 to be one for post conviction relief, the said petition should be and is hereby denied; and

IT IS FURTHER ORDERED that Rudolph’s petition for writ of habeas corpus as to issue 3, should be and the same is hereby denied; and

IT IS FURTHER ORDERED that the Clerk of this Court give notice of this order by mail to Rudolph, pro se, and to the Attorney General for the State of Montana.