author: MR. JUSTICE HUNT

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. RUSSELL WOODS, Defendant and Appellant.
    No. 84-376.
    Submitted on Briefs Nov. 29, 1985.
    Decided April 10, 1986.
    716 P.2d 624.

      O’Brien Law Office, James P. O’Brien, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Judy Browning, Asst. Atty. Gen., Helena, Robert L. DesChamps, III, County Atty., Karen Townsend & Ed McLean, Deputy County Attys., Missoula, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

The appellant, Russell Woods, was charged by information with two counts of burglary, one count of escape, and one count of tampering with a witness. He pled not guilty. At trial by jury he was found guilty on all charges. The District Court designated him a dangerous offender and sentenced him to 20 years for each count of burglary, 10 years for tampering with a witness, and 6 months in jail for escape. The prison sentences were to run consecutively. This appeal followed.

We affirm.

Four issues are presented for review:

1. Whether a juror’s nondisclosure of information during voir dire is grounds for reversal.

2. Whether Section 45-7-206(1), MCA, violates the appellant’s state and federal constitutional rights of freedom of expression and due process of law.

3. Whether there is sufficient corroborative evidence to confirm accomplice testimony that the appellant committed burglary.

4. Whether a note addressed to the appellant was properly admissible.

In the late evening hours of December 13, 1983, Timothy Horrocks and Wayne Conger went to the Trading Post Saloon in Missoula, Montana. There they met the appellant, Russell Woods, who was a friend of Conger. When this bar closed they continued their drinking at Conger’s trailer house in Missoula. They then left Missoula in Conger’s automobile, traveling south towards Lolo, Montana.

At about 6:00 a.m. on December 14, 1983, Dennis McKeehan, Lolo Tavern’s assistant manager who lived in a trailer house behind the tavern noticed Conger’s automobile parked near the tavern. He asked Conger if assistance was needed. Conger asked for a flashlight. After getting a flashlight, McKeehan saw the appellant run out of the tavern’s emergency exit with what looked like a tire iron in his hand. McKeehan ran back into the trailer and asked a friend to call the police. He then observed Conger’s automobile being driven away. A later check revealed that the tavern’s cash register had been disturbed.

The appellant and his two companions then proceeded west toward Lolo Hot Springs where they stopped at a filling station. A night attendant at the filling station was sleeping. He woke up and observed the appellant and another person approach the station. He then hid under his blankets. After they left he discovered that someone had tampered with the cash register. It was later discovered that a radio had also been taken out of a wrecker at the station.

The appellant and his two companions then proceeded back towards Lolo where they were spotted by a deputy sheriff and apprehended. After a stop at the Lolo Tavern for identification, Conger and Horrocks were transported in one vehicle and the appellant was transported in another towards Missoula. The appellant, although cuffed, succeeded in unbuckling his seat belt twice. While being moved from the highway patrol car in which he was riding to the deputy sheriff’s car for more secure transport he broke free and ran. He was soon captured again.

While the three suspects were in the Missoula County jail the appellant wrote several notes to his companions. One note was intercepted by a jailer and another was delivered to the sheriff’s department by the recipient. Both notes were attempts by the appellant to establish a story as to what the three should all say occurred. At trial, Horrocks testified that the appellant had broken into the Lolo Hot Springs service station. Conger testified that the appellant had complained, “We only got thirty dollars.” After trial, the jury found appellant guilty of burglary, escape and witness tampering.

The first issue presented is whether a juror’s nondisclosure of information during voir dire is grounds for reversal. We hold that the conviction stands despite the nondisclosure.

During voir dire those persons of the jury panel sitting in the jury box were asked whether they had ever been victims of any crime. Following a lunch recess, a member of the panel was dismissed and Juror Tollefson took her place. The prosecuting attorney asked:

“Q. Mr. Tollefson, when I was questioning the prospective jurors earlier this morning, did you have any definite responses to any of the questions I was asking? A. No.

“Q. Any reason why you can’t sit? A. No.”

Juror Tollefson eventually became the foreman of the jury which found the appellant guilty of two counts of burglary. In another case a few days later, Mr. Tollefson again sat on a jury panel. In response to questioning, Mr. Tollefson acknowledged he had been burglarized three times. The appellant contends Mr. Tollefson’s nondisclosure of this information during voir dire preceding his trial, and his eventual position as jury foreman, prejudiced the appellant’s right to an impartial jury and his right to due process.

We disagree. In State v. Bauer (Mont. 1984), [210 Mont. 298,] 683 P.2d 946, 953, 41 St.Rep. 1066, 1073, we held that nondisclosure, without more, does not amount to misconduct tending to prejudice the appellant. Here, as in Bauer the omission appears to have been inadvertent and unintentional. Where the nondisclosure does not amount to intentional concealment and no further evidence of bias is proven, there are no grounds for reversal. Id.

Next, the appellant contends that Section 45-7-206(l)(a), MCA, violates state and federal constitutional rights to freedom of expression and due process of law. That statute provides:

“Tampering with witnesses and informants. (1) A person commits the offense of tampering with witnesses and informants if, believing that an official proceeding or investigation is pending or about to be instituted, he purposely or knowingly attempts to induce or otherwise cause a witness or informant to:
“(a) testify or inform falsely;

First, we turn to the due process issue. Appellant argues that the statute, both on its face and as applied, is so vague that it violates the Fourteenth Amendment to the United States Constitution and Art. II, Section 7 of the Montana Constitution. The general rule is that a statute is void on its face if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. United States v. Harriss (1954), 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989; City of Choteau v. Joslyn (1984), [208 Mont. 499,] 678 P.2d 665, 668, 41 St.Rep. 492, 497. Appellant contends that the terms “investigation” and “about to be instituted” are not defined in the criminal code, nor is their meaning clarified by their context. Furthermore, the appellant maintains the phrase “knowingly attempts to induce or otherwise cause a witness or informant to testify falsely” does not indicate when conduct becomes criminal.

When the statute is read as a whole, the meanings of the terms are evident. Any person of ordinary intelligence would understand the meaning of “investigation” to include inquiry by public officials, whether police or court officers. Furthermore the language, “believing that an investigation is pending or about to be instituted” modifies the next phrase: “purposely or knowingly attempts to induce or otherwise cause a witness to: (a) testify or inform falsely.” Placed in this context, there is no doubt that the conduct proscribed by the statute are acts designed to mislead fact-finders who are investigating or who are about to begin an inquiry.

The statute, as applied to the appellant, is also without constitutional defect. The appellant, while awaiting trial wrote two letters to his co-defendants concerning the testimony to be presented at trial. The appellant maintains these were innocent discussions about testimony. The jury found these notes to be attempts to cause false testimony. We have no difficulty in holding that the statute makes clear that the act proscribed is inducement of false testimony while believing an investigation has been or is about to be instituted. Appellant, at the time he wrote the notes, was under arrest for suspected burglary. He wrote the notes in order to elicit testimony which would exculpate him. That he knew the testimony he sought would be false is evident from the opening sentence of one note which stated, “If the kid goes for it here’s the story.” The statute as applied is not unconstitutionally vague.

The appellant also contends the statute is so broad in what it prohibits, that it violates his rights of free speech under the First Amendment to the United States Constitution and under Art. II, Section 7 of the Montana Constitution. The crucial inquiry here is whether the statute sweeps within it prohibitions that speech which may not be punished constitutionally. Grayned v. City of Rockford (1972), 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222, 231; City of Whitefish v. O’Shaughnessy (Mont. 1985), [216 Mont. 433,] 704 P.2d 1021, 1026, 42 St.Rep. 928, 932.

Initially, we must note that the right to freedom of speech is not absolute. Speech may properly be regulated if the regulating statutes are narrowly and precisely designed. City of Whitefish, 704 P.2d at 1025, 42 St.Rep. 928, 932. As we have explained above, the statute has been precisely drawn to prohibit only speech designed to induce false testimony. Next then, the state’s interest in prohibiting the solicitation of false testimony must be balanced with defendant’s right to speak his mind.

The defendant’s right to speak is not limited to speaking the truth. As Justice Holmes remarked, “the best test of truth is the power of the thought to get itself accepted in the competition of the market . . .” Abrams v. United States (1919), 250 U.S. 616, 630 (Holmes, J., joined by Brandéis J., dissenting). The difficulty here is that solicitation of false testimony is not subject to the test of the marketplace. It is always surreptitious and, if undiscovered, remains unrefuted. Therefore the usual tools under our system of government for exposing falsehood, those being counterargument and education, are unavailable. See Linmark Assoc., Inc. v. Township of Willingboro (1977), 431 U.S. 85, 97, 97 S.Ct. 1614, 1620, 52 L.Ed. 155, 164-165; Wood v. Georgia (1962), 370 U.S. 375, 389, 82 S.Ct. 1364, 1372, 8 L.Ed.2d 569, 579.

Placing this inducement of deception in its context heightens the urgency with which it must be dealt. The right of courts to conduct their business in an untrammeled way lies at the foundation of our system of government. Wood v. Georgia (1962), 370 U.S. 375, 383, 82 S.Ct. 1364, 1369, 8 L.Ed.2d 569, 576. Justice Frankfurter has noted, and we agree, that one of the “substantive evils with which legislation may deal is the hampering of a court in a pending controversy, because the fair administration of justice is one of the chief tests of a true democracy.” Pennekamp v. Florida (1946), 328 U.S. 331, 353, 66 S.Ct. 1029, 1041, 90 L.Ed. 1295, 1307.

To justify prohibiting speech, the threat posed by the speech to the fair administration of justice “must constitute an imminent, not merely a likely [danger].” Craig v. Harney (1947), 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546, 1552. Attempting to induce or cause false testimony poses just such an imminent threat to the fact-finding aspect of the trial process. Orchestrated false testimony, if carefully done, could evade even the most thorough cross-examination. It could also survive the introduction of contrary physical evidence or testimony. The crucial nature of truthful testimony is evidenced by the oath administered to witnesses and the seriousness with which society and the law regard perjury.

Because witness tampering presents an imminent threat to the trial process, an aspect central to our democratic society, and because Section 45-7-206(l)(a) is narrowly drawn to address that threat, we hold that section does not violate the Montana or federal constitutional guarantees of the right to free speech.

The next issue presented by the appellant concerns whether there was sufficient corroborative evidence to confirm testimony at trial by the accomplices to the crime that the appellant committed burglary. Section 46-16-213, MCA, mandates that accomplice testimony be corroborated by other evidence which tends to connect the appellant with the charged offense. In State v. Case (Mont. 1980), 621 P.2d 1066, 1070, 37 St.Rep. 2057, 2060-2061, we explained:

“To be sufficient, corroborating evidence must show more than that a crime was in fact committed or the circumstances of its commission. It must raise more than a suspicion of the defendant’s involvement in, or opportunity to commit, the crime charged. But corroborative evidence need not be sufficient, by itself, to support a defendant’s conviction or even to make out a prima facie case against him. Corroborating evidence may be circumstantial and can come from the defendant or his witnesses .... (Citations omitted.)”

With these rules in mind we turn to the evidence presented at trial to corroborate the testimony by Conger and Harrocks that the appellant committed burglary.

Glen Fuller, an attendant at the Lolo Hot Springs service station, who was inside the station during the burglary testified that he saw the appellant and Harrocks get out of a car and move toward the station. Fuller then hid in the station’s bunk room. He testified he heard people come into the station and leave. Then he checked the cash register and saw that it had been broken into. Robert Sharp, another attendant at the station testified that when he arrived at work on the morning of the burglary, he observed that the cash register was open and money was missing. Finally there are the notes written by the appellant himself discussing the events surrounding the burglary.

This evidence presented at trial, and judged for its credibility by the jury, surely is enough to tend to connect the appellant with the burglary. We cannot disturb the finding of the jury that the appellant did commit the burglary.

Finally the appellant contends the District Court erred in admitting into evidence a note addressed to the appellant and written by two other inmates. The note was intercepted by jailers before it reached the appellant. The note contained offers by the two inmates to “talk sense” into Harrocks — with physical force if necessary. While this note is obviously relevant to whether the witness Harrocks was being solicited to give false testimony, it is hearsay. The State contends the note was offered to prove the witness’s state of fear. However, the inference that the witness was fearful cannot be reached without the intermediate inference that the inmates actually attempted to “talk sense” into the witness. The note, then, was offered by the State to prove the contents of the note and, as such, is inadmissible hearsay. Rule 801(c), M.R.Evid, However, the note constituted cumulative evidence in that the charge of witness tampering is also supported by the substantial credible evidence of Harrock’s testimony and the notes written by the appellant, himself. The District Court by admitting the note erred, but the error was harmless.

The judgment of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and WEBER concur.


source: Caselaw Access Project

author: MR. JUSTICE HARRISON

license: Public Domain

text:
    FRANK KOVACICH, Plaintiff and Respondent, v. JIM NORGAARD, Defendant and Appellant.
    No. 85-30.
    Submitted on Briefs Dec. 19, 1985.
    Decided April 15, 1986.
    716 P.2d 633.

      Jon A Oldenburg, Lewistown, for defendant and appellant.
    Thomas P. Meissner, Lewistown, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from an Order of the District Court of the Tenth Judicial District of the State of Montana in and for Fergus County. The Court set aside defendant’s Writ of Prohibition, permitting plaintiff to proceed with the sale of a motor vehicle previously subject to execution. We affirm.

The single issue on appeal is whether the District Court erred in allowing Kovacich to proceed with the sale of the vehicle in question.

A complaint filed by Kovacich in January, 1983, alleged Norgaard’s failure to make payments to Kovacich for the purchase of farm machinery. After a bench trial, the court entered judgment in favor of Kovacich in the amount of $6,338.67, plus interest and costs. Kovacich made several attempts to collect on the judgment, one of which led to this appeal.

The first attempt to levy against the truck was unsuccessful. Norgaard, learning the truck was going to be seized, removed it from a consignment lot in Lewistown, Montana, and concealed its whereabouts. A hearing was held in March for the purpose of requiring Norgaard to testify under oath as to his property. Norgaard admitted he had taken the truck to the consignment lot. He testified he then removed it and sold it to Don McNair, a close friend. Norgaard claimed McNair loaned him $2,500 and also paid off the lien the bank had against the truck. He testified he did not know the present location of the truck.

In May McNair gave Norgaard $300 and three collector’s guns, and Norgaard gave him the certificate of title. McNair did not re-register the truck in his name, or purchase insurance for the truck, although in July he testified he considered himself to be the owner.

No further action was taken until June. Norgaard had returned the truck to the consignment lot, supposedly at McNair’s request. The Registrar of Motor Vehicles verified the truck was registered in Norgaard’s name. A second Writ of Execution was issued, pursuant to which the Fergus County Sheriff seized the truck. Norgaard obtained a Writ of Prohibition preventing the sale of the truck. At a hearing on the Writ in July, Norgaard testified he had concealed the truck in March by driving it to a consignment lot in Billings so he “wouldn’t loose it.” He further testified he paid off the bank with the $2,500 McNair had given him. McNair testified that the $2,500 was a loan to be used as partial payment on the truck.

The truck was levied against while it was on the Lewistown lot. Norgaard obtained a Writ of Prohibition to stop the Sheriff’s sale of the vehicle. Following a hearing, the court set aside the Writ and allowed Kovacich to proceed with the sale. It is from this Order that Norgaard appeals.

Norgaard argues the District Court erred in allowing Kovacich to proceed with the sale of the 1980 Ford pick-up truck. The resolution of this issue turns on whether the transaction between Norgaard and McNair was an attempt by Norgaard to defraud his creditor.

Norgaard argues there was a valid sale of the truck and ownership was transferred to McNair. In this case it is not important whether or not ownership was transferred to McNair. Of paramount significance is that neither Norgaard nor McNair followed the procedure necessary for transferring title as far as third persons are concerned.

A primary purpose of the procedures set forth in Section 61-3-201, MCA, is to provide a means either of actual or constructive notice of ownership of motor vehicles. This concept is implicit in the statute, particularly in the language of Subsection (7) which states in part: “Certificates of ownership shall remain valid until cancelled by the department. . . “ In other words, the owner of a motor vehicle is that person whose name appears on the certificate of ownership, thus providing notice to all third-persons of such ownership.

The notice function of the registrar of motor vehicles is further evident from a review of Section 61-3-103, MCA. That section specifies that motor vehicle security interests are invalid unless a true copy is received by the division. Creditors and subsequent purchasers must be protected from failure of a secured party to file proof of a security interest. Likewise, judgment creditors are entitled to rely on ownership as reflected in the division’s records.

There is further statutory protection for Kovacich. Unless any transfer of ownership from Norgaard to McNair was accompanied by an immediate delivery and followed by an actual and continued change of possession of the truck, the transfer “is conclusively presumed to be fraudulent and therefore void against those who are his creditors while he remains in possession . . . “ Section 31-2-315, MCA. There is no evidence of an immediate delivery or of any actual change of possession of the truck.

“Ordinarily, as between the parties, a delivery is not essential to complete a sale, but as to creditors . . . it is absolutely indispensable . . . It is the general rule that to defeat the claim of a creditor of the vendor the change of possession must be so open and so long continued as to indicate to the world at large that there has been a transfer of title.”

Perry v. Mullen (1928), 81 Mont. 482, 486, 263 P. 976, 977. See also Puckett v. Hopkins (1922), 63 Mont. 137, 140, 206 P. 422, 423.

In the case at bar it appears no one had notice of a transfer of title. If there had been a valid sale from Norgaard to McNair but the sale was “not accompanied by an immediate delivery and followed by an actual and continual change of possession, the vendee [McNair] takes title subject to the claim of the vendor’s creditors [Kovacich] . . .” Tetrault v. Ingraham (1918), 54 Mont. 524, 528, 171 P. 1148, 1150. If, on the other hand, there was not a valid sale from Norgaard to McNair, Kovacich certainly can levy against Norgaard’s truck. The Order of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES SHEEHY, WEBER, MORRISON, HUNT and GULBRANDSON concur.


text:
    In re the MARRIAGE OF CAROLE D. (CLARK) CONKLIN, Petitioner and Appellant, and MARK A. CLARK, Respondent and Respondent.
    No. 85-255.
    Submitted on Briefs Jan. 30, 1986.
    Decided April 15, 1986.
    716 P.2d 629.

      Hilley & Loring, Emilie Loring, Great Falls, for petitioner and appellant.
    Swanberg, Koby, Swanberg & Matteucci, Daniel L. Falcon, Great Falls, for respondent and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Carole D. (Clark) Conklin appeals from an order of the Cascade County District Court modifying child support, ordering the parties to share the children’s visitation travel expenses, and relieving respondent of the obligation of making car payments.

We reverse.

The issues raised by appellant Carole are:

1. Whether the District Court erred in modifying child support?

2. Whether the District Court erred in amending the payment of visitation travel expenses of the children?

3. Whether the District Court erred in releasing respondent from his obligation to pay the remaining car payments?

The parties were married on December 23, 1967. Two sons were adopted when they were infants. The parties separated in June, 1982, and Carole filed for dissolution of the marriage. The parties entered into a child custody and property settlement agreement on July 8, 1982. The decree of dissolution was entered on August 5, 1982, and incorporated the agreement.

At the time of the dissolution, respondent Mark was employed as general counsel for IFG Leasing in Great Falls; Carole was a full time homemaker. Mark’s salary was $60,000 per year with potential bonuses of $15,000 to $40,000 per year. The agreement provided that Carole was to have custody of the children, Mark was to pay child support of $500.00 per month per child, and payments of $353.00 per month on the Jeep which was awarded to Carole. Following the dissolution, Carole moved to Butte, and Mark was transferred to Minneapolis, Minnesota.

On September 30, 1983, Mark petitioned for modification. On March 20,1985, the District Court reduced Mark’s child support obligation to $250.00 per month per child, ordered the parties to share the children’s visitation travel expenses equally, and relieved Mark of the remainder of the Jeep payments.

We will first address the modification of child support. The District Court can modify a child support obligation only upon a showing of changed circumstances so substantial and continuing as to make the terms of the original decree unconscionable. Section 40-4-208 (2)(b). This Court will reverse the District Court only if the District Court’s findings are clearly erroneous in light of the evidence in the record. In re the Marriage of Carlson (Mont. 1984), [214 Mont. 209,] 693 P.2d 496, 41 St.Rep. 2419. The appellant must show that there was a clear abuse of discretion or an error in the District Court’s findings. Reynolds v. Reynolds (Mont. 1983), [203 Mont. 97,] 660 P.2d 90, 40 St.Rep. 321.

In this case, we find such an abuse of discretion. We have held that “the conditions and circumstances of the parties must be examined and determined at the time of the modification hearing, and may not be based upon mere speculative future conditions or possible conditions.” Gall v. Gall (1980), 187 Mont. 17, 20, 608 P.2d 496, 498. A careful reading of the findings of fact and conclusions of law indicates that the District Court did rely on speculative conditions. Finding of fact number 9 states:

“Mr. Clark is now involved in a potential lawsuit in regard to the sale of the Great Falls home. Mr. Clark has presented evidence indicating that the second mortgagee on the property intends to file suit in the immediate future if Mr. Clark does not make satisfactory arrangements to cover the second mortgage on the property. Mr. Clark did not anticipate this debt at the time of the Decree of Dissolution. The amount on the debt is $18,346.07. (Emphasis added.)”

In its findings of fact number 11, the District Court states that Mr. Clark has purchased a condominium in Minneapolis and “that the complex was purchased without knowledge of a pending lawsuit in regard to the construction of the complex. Mr. Clark is now engaged in a lawsuit to recover his investment. It is not anticipated that in the near future Mr. Clark will retrieve any of the down payment that his [second] wife made on the complex.” (Emphasis added.)

The court relies on speculative conditions in its conclusions of law as well. Conclusion of law number 6 states that “Mr. Clark has been served notice of a potential suit for the sale of the family home in Great Falls, Montana, on a debt in the amount of $18,346.07. This debt was not anticipated at the time of the dissolution of the marriage.” Conclusion of law number 10 states that “[t]he reduction in income plus the presence of anticipated debt results in making the original terms of the Decree unconscionable.”

The District Court abused its discretion by not limiting its consideration to circumstances in existence at the time of the hearing. At the time of the hearing Mark was not involved in a lawsuit over the Great Falls home, and it was mere speculation that Mark would not retrieve any of the down payment made on the condominium.

Further, there is no substantial credible evidence on the record to justify the District Court’s conclusion that Mark’s change in condition is permanent. We have addressed this question before. In Carlson, 693 P.2d at 499, we stated:

“The record substantiates that the father is currently unemployed but there is no evidence supporting a conclusion that this substantial change in the father’s circumstances is continuing. In Hughes v. Hughes (Mont. 1983), [205 Mont. 69,] 666 P.2d 739, 741, 40 St.Rep. 1102, 1105, the District Court findings were held to be clearly erroneous because no evidence was presented to prove that the husband’s change in circumstances was continuous. The District Court correctly identified the question involved: ‘Can he go to work?’ The father’s evidence failed to show that his unemployment was permanent or that earning capacity had been substantially reduced.”

In the instant case, the record indicates that Mark’s salary went from $75,000 the year of the dissolution to $60,000 the year of the hearing. His employer could no longer guarantee a salary greater than $45,000 after July 1, 1985. However, there was no evidence to indicate that his salary would not go up again in the future, that he would not earn bonuses in the future, or more importantly, that his earning capacity had been substantially reduced. To uphold the District Court’s order, the record must show a change of circumstances so substantial and continuing as to make the original decree unconscionable. The record does not support the District Court’s conclusion that the change is continuing.

Therefore, we must reverse the District Court on the issue of modification of child support.

We also must reverse on the issue of payment of travel expenses. The District Court based its order on the findings of fact and conclusions of law which we have already determined are erroneous.

Finally, we address the order of the District Court relieving Mark of the responsibility of paying the remainder of the Jeep payments. Mark argues that because the Jeep was used “95% for the children,” it is an aspect of child support and subject to modification by the District Court.

Mark relies on Phennicie v. Phennicie (1979), 185 Mont. 120, 604 P.2d 787 to support his argument. In that case, the custody and settlement agreement provided that the family home was to be sold within 6 months after the second child graduated from high school. The District Court modified the agreement and ordered that the home not be sold until the youngest child graduated from high school. We affirmed the District Court stating:

“We note that a large portion of the child support section of the agreement deals with the paying for and maintenance of the family home.
“Why the home was to be sold after the second child graduated from high school, rather than after the youngest graduated, is not clear. What is clear is that the home was an integral part of the child support provisions so long as the second child was still a high school student. . . Consequently, we find that the terms concerning the home, in this case, were part of the child support provisions and as such may be modified by further order.”

Phennicie, 185 Mont. at 128, 129, 604 P.2d 787.

Marks reliance on Phennicie is misplaced. In this case, the Jeep was clearly denominated personal property in the agreement. The Jeep payments were in no way tied to the support provisions, the vehicle was a marital asset purchased during the marriage and awarded to Carole in the agreement. It is incorrect to argue that because the Jeep is used primarily for the children it is somehow transformed from personal property to child support. The Jeep pay-merits are part of the property settlement agreement, and as such are governed by different rules than modification of support.

Section 40-4-208(3) states:

“(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.”

The conditions justifying reopening of a judgment are found at Rule 60(b), M.R.Civ.P. The grounds are mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, intrinsic and extrinsic fraud, misrepresentation, misconduct, and any other reason justifying relief from the operation of the judgment.

The District Court made no findings or conclusions regarding any of these grounds in its order. Therefore, we reverse the order of the District Court relieving Mark of the remainder of the Jeep payments.

The District Court abused its discretion by relying on speculative future conditions and possible conditions. Further, the record does not support the conclusion that Mark’s change in circumstances is substantial and permanent. Finally, the District Court erroneously modified the property settlement agreement without any showing of the necessary grounds for such modification. For these reasons, the order of the District Court must be reversed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and SHEEHY concur.


author: MR. JUSTICE WEBER

text:
    LOUISE N. GIDLEY, individually and as Personal Representative of the Estate of James I. Gidley, Deceased, Plaintiff and Appellant, v. W.R. GRACE & COMPANY, a Connecticut corporation, Grace W.R & Company-Construction Products Division, an unincorporated association, and John Does I Through V., Defendants and Respondents.
    No. 85-414.
    Submitted Feb. 18, 1986.
    Decided April 15, 1986.
    717 P.2d 21.

      Murphy, Robinson, Heckathorn & Phillips, I. James Heckathorn argued, Kalispell, for plaintiff and appellant.
    Garlington, Lohn & Robinson, Gary L. Graham argued, Missoula, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Louise Gidley (wife), personal representative of deceased husband who allegedly died from asbestosis-related cancer, sought judgment against W.R. Grace & Company (Grace) under theories of wrongful death and misrepresentation. Upon motion by Grace, the Lincoln County District Court granted partial summary judgment dismissing the wrongful death action on the ground that the Montana Occupational Disease Act (MODA) provided the exclusive remedy. Wife appeals. We reverse and remand.

The sole issue on appeal is whether MODA was Mr. Gidley’s exclusive remedy against Grace.

In July 1977, husband worked his last day for Grace. He died in May 1982. Wife alleges husband discovered he had cancer in June 1981, three years and eleven months after his last actual day of work. In July 1982, wife filed for benefits under MODA. The claim was denied by Grace because it was not timely filed within three years after husband’s last actual day of work under Sections 39-72-403 and -406, MCA (1981). In June 1984, wife filed an action against Grace alleging wrongful death and misrepresentation. Later, the court dismissed the wrongful death action on the ground MODA provided the exclusive remedy.

Was MODA Mr. Gidley’s exclusive remedy against Grace?

Our initial question is which MODA statutes control the claim; those in effect on Mr. Gidley’s last actual day of work in July 1977, or those in effect at the alleged time of discovery of the disease in June 1981, or those in effect when the claim was originally filed in July 1982? As to MODA, this issue is novel. However, it has been considered a number of times in workers’ compensation cases and the Court has concluded that the statute in effect at the date of accident or injury controls. See Iverson v. Argonaut Insurance Company (1982), 198 Mont. 340, 342, 645 P.2d 1366, 1367; Yurkovich v. Industrial Accident Board (1957), 132 Mont. 77, 86, 314 P.2d 866, 872; Chisholm v. Vocational School for Girls (1936), 103 Mont. 503, 510, 64 P.2d 838, 842-43. We conclude that the same rationale should be applied in MODA claims. Here, Mr. Gidley’s last actual day of work was in July 1977. We therefore conclude that MODA statutes in effect on his last actual day of work are controlling. MODA was originally enacted in 1959. Sections 92-1308 and 92-1331 governed rights of suit at common law until 1979, when Section 92-1308 was amended and Section 92-1331 was repealed. As applicable here, Sections 92-1308 and 92-1331 stated:

“92-1308. Right to compensation exclusive remedy. The right to recover compensation pursuant to the provisions of this act for occupational diseases sustained by an employee and arising out of and in the course of his employment, whether resulting in death, or not, shall be the exclusive remedy therefor against the employer electing to be bound by and subject to this act, except as to such employees as shall reject this act as provided herein.
“92-1331. Rights of suit at common law. There shall be no common-law right of action for damage from occupational disease against an employer who elects to come under the provisions of this act, excepting for those employees not eligible for compensation under the terms of this act, or who reject coverage of this act.” Under Section 92-1308, where an employer elected to be bound by MODA, the rights of an employee were limited to MODA unless an employee had rejected MODA. Affirmative rejection appeared to be the only means by which an employee could step out from under MODA and preserve a common law right of action. In substance Section 92-1331 provided for a common law right of action when either the employee rejected coverage or the employee was not eligible for compensation under the terms of MODA. Consequently, it appears the statutes are not in agreement on the issue of common law rights. One statute makes MODA the exclusive remedy unless affirmatively rejected. The other statute makes MODA the exclusive remedy unless MODA is rejected or the employee is not eligible for compensation under the terms of MODA. We conclude that the statutes are at least ambiguous, if not contradictory.

We therefore review MODA’s legislative history. See Dorn v. Bd. of Trust, of Billings Sch. Dist. (Mont. 1983), [203 Mont. 136,] 661 P.2d 426, 40 St.Rep. 348. In 1959, MODA was introduced as Senate Bill #112. As originally introduced, Section 31 of Senate Bill #112 prohibited a common law right of action stating:

“There shall be no common law right of action for damage from occupational disease against an employer who elects to come under the provisions of this act.”

This proposal was debated in the Senate Committee on Labor and Compensation. Employee representatives presented objections that the employers were getting the benefit of waiver provisions at the expense of the common law rights of employees. As an example, under Section 92-1330, if an employee failed a requested physical exam because the employee already had an occupational disease, then as a condition of employment the employer could request the employee to waive his rights to MODA benefits. In addition, even if an employee passed a requested medical examination, no benefits were granted unless the employee had worked a minimum of 1000 workshifts and also timely filed his claim within a prescribed period after his last actual day of work.

After debate, the Senate Committee of the Whole (Committee) recommended that the bill be amended. The recommendation of the Committee regarding common law rights was approved by both the Senate and the House. Later, the bill was signed into law by the Governor and read:

“92-1331. Rights of suit at common law. There shall be no common-law right of action for damage from occupational disease against an employer who elects to come under the provisions of this act, excepting for those employees not eligible for compensation under the terms of this act, or who reject coverage of this act. (Adopted amendment underscored.)

Section 92-1368, R.C.M. (1947) as amended, provided that the MODA is to be liberally construed. Although this Court has not previously considered Section 92-1368, it is directly comparable to a similar provision of the Workers’ Compensation Act. Because both Acts involve the same employer-employee relationship, we conclude that the same rules of liberal construction which have been applied by the Court to Workers’ Compensation Act cases should also be applied to MODA cases. We therefore conclude that MODA shall be liberally construed in favor of the claimant. Stokes v. Delaney & Sons, Inc. (1964), 143 Mont. 516, 519-20, 391 P.2d 698, 700. We also conclude that MODA is to be administered so as to give the employee the greatest possible protection within the purposes of the Act. Yurkovich v. Industrial Accident Board (1957), 132 Mont. 77, 83, 314 P.2d 866, 870. We further conclude that when MODA statutes are open to more than one interpretation, one of which is favorable to the employee and another against him, the Court may properly construe the statutes in a manner most favorable to the employee. Geary v. Anaconda Copper Mining Co. (1947), 120 Mont. 485, 489, 188 P.2d 185, 186.

While the legislative history on Section 92-1308 and Section 92-1331 may not be determinative of the issue, it does establish that the Committee carefully considered the question of common law rights of employees, and recommended an amendment that appears to allow common law action by an employee in two different circumstances. Notwithstanding the provisions of Section 92-1308, our question is whether Section 92-1331 allows a common law right of action in the present case because Mr. Gidley was not eligible for compensation under MODA. Applying the above described liberal rule of construction, we conclude that wife has a common law right of action in behalf of Mr. Gidley because he was not eligible for compensation under MODA.

This conclusion contradicts Anaconda Co. v. District C. of S.J.D. In and For C. of S.B. (1973), 161 Mont. 318, 506 P.2d 81, which was relied upon by the District Court. We have carefully considered Anaconda, and have studied both the majority and the dissent. We note that the majority in Anaconda did not explain why it concluded that where the employer had elected to be bound by MODA, such an election of necessity bound the employee. As is indicated by our more extensive analysis of MODA, we conclude that where the employee was not eligible for compensation because of the running of the limitation period, he comes within the statutory definition of an employee who is not eligible for compensation and is therefore entitled to his common law right of action. We essentially agree with the dissent in Anaconda that pointed out that if an employee was not eligible for compensation under MODA then common law remedies were preserved. We therefore expressly overrule Anaconda insofar as it is inconsistent with the holding of this opinion.

Under the applicable MODA statutes, a claim was required to be timely filed within three years from Mr. Gidley’s last actual day of work. Wife alleges that Mr. Gidley did not discover his occupational disease until three years and eleven months after his last actual day of work. As a result, Mr. Gidley was not eligible under the terms of MODA for compensation. We hold his common law right of action was preserved. In doing so, we make no comments regarding the merits of the case itself.

We reverse the judgment of the District Court and direct the reinstatement of the plaintiff’s claim for relief.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, MORRISON, SHEEHY, GULBRANDSON and HUNT concur.


author:
MR. JUSTICE HARRISON
      MR. JUSTICE SHEEHY,

text:
    CLARE J. JENSEN, Plaintiff and Appellant, v. STATE of Montana, DEPARTMENT OF LABOR AND INDUSTRY, JOB SERVICE DIVISION, and David Hunter, Defendants and Respondents.
    No. 85-340.
    Submitted on Briefs Jan. 16, 1986.
    Decided April 17, 1986.
    Rehearing Denied June 12, 1986.
    718 P.2d 1335.

      Marra, Wenz, Johnson & Hopkins, Neal G. Jensen, Great Falls, for plaintiff and appellant.
    R. Scott Currey, Dept, of Labor & Industry, Helena, for defendants and respondents.
   MR. JUSTICE HARRISON

Clare Jensen appeals from an order of the Cascade County District Court which dismissed Count II of his amended petition for veterans preference in the termination of his job. We affirm the order of the District Court.

The facts of this case are basically undisputed by the parties. Appellant Clare Jensen (“Jensen”) was hired by the Employment Security Division, the predecessor of the Job Service Division of the Department of Labor and Industry, in 1961. When initially hired by the Department, Jensen, a veteran, claimed and received an employment preference. In March 1982, Jensen applied for the position of Employment Manager III in the Great Falls Job Service Office. On or about June 16, 1982, Jensen was informed by the Department that he was not chosen for the Great Falls manager position. On June 30, 1982, Jensen was terminated pursuant to a department-wide reduction in force.

On July 5, 1983, Jensen filed an Amended Petition to Enforce Employment Preference in the District Court, Eighth Judicial District, in and for the County of Cascade. His amended petition contained three counts. Count I alleged that Jensen was not hired by the respondents, (hereinafter “Department”), as the manager of the Great Falls Job Service Office in violation of his veterans preference. Count II alleged that he was terminated pursuant to a reduction in force by the Department in violation of his veterans preference, and Count III alleged that the 1982 interview process utilized by the Department in filling the manager’s position violated a rule of the now defunct Montana Merit System Council.

In July 1983, in response to Jensen’s amended petition, the Department filed a Consolidated Motion that in part asked the District Court to dismiss Jensen’s amended petition. In August 1983, the parties filed with the District Court a stipulated set of facts and an agreement that the court would hear only Jensen’s Count I. Paragraph 5 of the Stipulation dealt with the remaining two counts of Jensen’s amended petition. It read:

“Petitioner’s Counts Two and Three shall be reserved and that all claims and defenses arising from Counts Two and Three are reserved as to all interested parties. Any statutes of limitation pertinent to Counts Two and Three are tolled pending the resolution of petitioner’s Count One.”

On September 19, 1983, the District Court issued an order ruling on Jensen’s Count I. The court found that Jensen had been denied his veterans preference. In addition, the District Court ordered the Department to appoint Jensen to the manager’s job and to provide him with backpay. The Department appealed this order. In Jensen v. State of Montana, et al. (Mont. 1984), [213 Mont. 84,] 689 P.2d 1231, 41 St.Rep. 1971, this Court affirmed in part and vacated in part the District Court’s order. This Court concluded:

“For the foregoing reasons, we vacate that part of the judgment that addresses Jensen’s remedy and remand to the District Court with directions to order the Department of Labor and Industry to reopen the manager position to the original applicants, grant Jensen and the other preferred applicants their preference, and otherwise fill the vacancy in accordance with Crabtree.”

Jensen, [213 Mont. 84,] 689 P.2d at 1235.

The Department subsequently did reopen the manager’s position in question, reinterviewed the preferred applicants, including Jensen, and filled the position with a preferred applicant, not Jensen.

While the Department’s appeal involving Count I was pending before this Court, however, the Montana legislature met in special session in December 1983 and enacted a new Veterans’ and Handicapped Persons’ Employment Preference Act which became effective December 20, 1983. This new act retroactively repealed the old Veterans Preference Act under which Jensen had filed his amended petition. In doing so, the legislature decreed that claims under the old act were barred if they were not reduced to judgment on the effective date of the new act. Only claims that had been reduced to judgment before December 20, 1983, were enforceable, and no claims under the old act could be made under the new act.

In February 1985, the Department filed an Amended Motion to Dismiss asking the District Court to dismiss the remaining Counts II and III of Jensen’s amended petition. With regard to Count II, the subject of this appeal, the Department argued that Section 14 of the new Veterans Preference Act (which is now known as the “retroactive repealer”) had the effect of barring Count II and its allegation that Jensen was wrongfully terminated by the Great Falls Employment office because the person who was retained in his position was not a veteran. The Department argued that since Jensen’s claim in Count II was not reduced to final judgment before the effective date of the new act (December 20,1983), his preference claim was barred.

In March 1985, Jensen filed a Motion of Partial Summary Judgment as to his Count III. In June 1985, the District Court granted the Department’s motion to dismiss Counts II and III of Jensen’s amended petition and denied Jensen’s Motion for Partial Summary Judgment. Jensen then commenced this appeal in which he only appeals that portion of the District Court’s order dismissing Count II of his amended petition.

Jensen presents the following issue for review by this Court:

Whether Jensen’s claim of veterans preference under Count II, which was expressly reserved by the Stipulation of the parties, survived the Montana legislature’s “retroactive repealer.”.

Jensen’s Count II is brought pursuant to Section 10-2-201 through 10-2-206, MCA (repealed 1983). In Crabtree v. Montana State Library (Mont. 1983), [204 Mont. 398,] 665 P.2d 231, 40 St.Rep. 963, issued approximately one month before Jensen filed his amended petition, this Court held that Section 10-2-201 through Section 10-2-206 granted qualified veterans and handicapped civilians an “absolute preference” over non-veterans and non-handicapped applicants in public employment. Sections 10-2-201 through 10-2-206, referred to here as the old Veterans Preference Act, were repealed by the legislature in special session in December 1983 as part of its adoption of the new “Montana Veterans’ and Handicapped Persons’ Employment Preference Act,” Section 39-30-101, et seq. MCA. Section 14 of the act reads:

“Section 14. Repealer. Sections 10-2-201 through 10-2-206, MCA, are repealed. This repeal applies retroactively to bar any claim of violation or application of 10-2-201 through 10-2-206 that has not been reduced to judgment, whether or not the judgment is final, on the effective date of this act [December 20, 1983]. Claims under 10-2-201 through 10-2-206 that have been reduced to judgment, whether or not the judgment is final, on the effective date of this act, are enforceable. No claim for a violation of 10-2-201 through 10-2-206 may be made under Section 8 of this act [39-30-206 and 39-30-207].”

As the Department points out, the validity of Section 14 was affirmed by this Court in Conboy v. State of Montana (Mont. 1985), [214 Mont. 492,] 693 P.2d 547, 42 St.Rep. 120. Jensen now argues that Count II, although not yet reduced to judgment, is not barred by Section 14 due to a Stipulation (quoted above) between the parties herein “reserving” his claim. Jensen’s argument can be summarized by the following excerpts from his brief:

“The issue in this appeal can be stated simply: Can the government, obliged as though a private person to observe the terms of its contracts, totally repudiate by a legislative act its earlier express agreement to reserve an individual’s claims. That is, can the government forbid one to pursue a claim which it had earlier affirmatively promised an individual he could preserve?
“Simply stated, the Department is now seeking to backtrack on its earlier Stipulation, for the sole purpose of trapping Jensen who relied in good faith on such written agreement when he did not bring Count Two on for a hearing and reduce it to judgment while awaiting the Department’s appeal of Count One. By abiding by his agreement to wait for Count One to be resolved, Jensen should not now be penalized. Judicial economy was achieved by pursuing Count One to a conclusion.
“For his patience and consideration . . . Jensen should not be thrown out of Court. Instead, the Department should be compelled to abide by the Stipulation, and its express agreement to reserve Jensen’s Count Two preference claim pending the resolution of Count One, even though a special session of the Montana Legislature has intervened.”

Jensen’s argument in this case, although intriguing and persuasively written, is flawed and cannot stand. This Court may sympathize with Jensen’s position, but we cannot ignore the realities of the current law in this state.

Both parties seem to agree that paragraph 5 of the Stipulation was entered into voluntarily for the purpose of simplifying litigation. The intent seems to be clear: to get Count I, apparently viewed by the parties as the key issue, before the District Court as quickly as possible.

We agree with Jensen that the Stipulation should be viewed as a contract or agreement that is to be interpreted pursuant to contract principles. See: Olson v. Idaho Department of Water Resources (1983), 105 Idaho 98, 666 P.2d 188, and Thayer v. Federal Life Insurance Company (1935), 217 Wis. 282, 258 N.W. 849. Jensen seems to argue that this Stipulation creates an obligation on behalf of the Department to “reserve” Jensen’s claim for an indefinite period and regardless of the action of the legislature. As the Department points out, however, this argument fails to take into consideration the gratuitous character of Jensen’s underlying veterans preference claim.

In Conboy this Court held, in discussing the character of the veterans preference created by the old preference law, that:

“We hold that the veterans’ preference rights granted under the repealed portion of the Veterans Preference Act are not rights earned through years of service to the state, but are a gratuity given to citizens of Montana by the State to show its appreciation for service in the Armed Forces. They do not amount to rights vested in the veterans.
“We further point out that in repealing the old veterans’ preference law, Section 10-2-201 through 10-2-206, MCA, the legislature was not faced with any statutory or constitutional limitations on its rights of repeal. There is no provision in that Act or in the Montana Constitution limiting the legislature’s right to repeal the preference. . . We conclude that the legislature properly could repeal the veterans’ preference by a majority vote at any time and that veterans acting under the old law are deemed to have acted in contemplation of that power of repeal on the part of the legislature.” Conboy, 693 P.2d at 552.

This position adopted in Conboy was recently reaffirmed by this Court in Femling v. Montana State University (Mont. 1986), [220 Mont. _,] 713 P.2d 996, 43 St.Rep. 235, and Nick v. Montana Department of Highways (Mont. 1985), [219 Mont. 168,] 711 P.2d 795, 42 St.Rep. 1926. In Femling, this Court stated:

“ ‘A citizen can have no vested right in a general law which can preclude its amendment or repeal, and there is no implied promise on the part of the state to protect its citizens against incidental injury occasioned by changes in the law.’ Stanford v. Coram (1903), 28 Mont. 288, 293, 72 P. 655, 656. As we noted in Conboy v. State (Mont. 1985), [214 Mont. 492,] 693 P.2d 547, 42 St.Rep. 120, a veteran acting under the absolute veterans’ preference statute did so in contemplation of the legislature’s power of repeal. Statutes may be replaced at any time, and a person acting under a statute is “deemed to have acted in contemplation of this power of repeal.” Section 1-2-110, MCA.
“In Conboy, we stated that the preference statute was a gratuity given to veterans by the State. It did not amount to a right vested in the veterans. Conboy, 693 P.2d at 552. We reaffirmed this conclusion in Nick v. Montana Dept. of Hwys. (Mont. 1985), [219 Mont. 168,] 711 P.2d 795, 42 St.Rep. 1926.” Femling, [_ Mont. _,] 713 P.2d at 998.

When viewed in light of Conboy, Femling and Nick, the Department correctly argues the Stipulation must be viewed as an agreement to reserve a claim based on a gratuity that the legislature was empowered to repeal at any time. Jensen and other veterans are deemed to have “acted in contemplation” of this power to repeal. In other words, Jensen entered the Stipulation with knowledge of the legislature’s power to repeal the old Veterans Preference Law at any time.

Jensen’s strong reliance on Perry v. United States (1935), 294 U.S. 330, 55 S.Ct. 432, 79 L.Ed. 912, indicates that he is confusing the gratuitous nature of his claim with the binding contractual nature of the Stipulation. As the Department points out, a close reading of Perry shows that the situation in that case is easily distinguishable from the present case. In Perry, the Court was asked to decide whether a joint resolution passed by Congress allowing the United States government to pay off government bonds with currency rather than gold, as called for in the bond obligation itself, was proper. The Court found that Congress could not change its contractual obligation by legislation once that obligation had been incurred. The implication is that the bond holder’s right to be paid in gold had vested and once vested could not be tampered with by Congress.

Jensen relies on this case to argue that the Montana legislature’s passage of Section 14 illegally repudiates the Stipulation or “contract” he had with the Department reserving his Count II claim. Jensen sums up his argument under this issue by stating:

“[I]n Perry the point is inescapable: a government cannot repudiate its own contracts.
“A government, such as the State of Montana in this case, must be held to the terms of its contracts. If its agent stipulates to reserve the claims of an individual under an existing legislative act, that Stipulation cannot be repudiated and annulled simply on the pretext of the subsequent ‘fluctuating policy’ of the Legislature.
“Just as the bond before the Court in Perry was ‘an obligation of the United States,’ so too is the Stipulation executed by counsel for the Department an obligation of the State of Montana.”

The Department correctly points out, however, that in Perry the obligation at issue was a bond obligation creating vested rights in the bond holder. The government was attempting to modify these vested rights by giving bond holders less than they had bargained for. In this case, the obligation that Jensen relies on is a Stipulation reserving the enforcement of a claim. It does not create a claim as in Perry. The Stipulation reserves a claim that can be eliminated at any time by legislative action. The fact that the claim was reserved does not change the character of the claim — it can still be eliminated by the legislature at any time.

We agree with the Department that Jensen is attempting to make a gratuity into a vested right. His argument implies that the preference creates an obligation, rather than a gratuity, however this is not the current law in light of Femling, Nick and Conboy, supra. The Stipulation, therefore, reserved only what existed at the time it was entered into (a gratuity). It cannot now be used to give Jensen more than he originally had.

The District Court’s order dismissing Jensen’s Count II is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES GULBRANDSON and WEBER concur.

MR. JUSTICE SHEEHY,

dissenting:

Justice sometimes takes strange forms. This case is illustrative.

When Jensen first brought his case here, Jensen v. State (1984), [213 Mont. 84,] 689 P.2d 1231, 41 St.Rep. 1971, this Court held that the absolute preference accorded veterans under the Veterans and Handicapped Civilian Employment Preference Act (Section 10-2-201, et seq. MCA) was applicable, and therefore we remanded the case so that the manager position could be reopened and a decision made in the accordance with the preference. In that case both Justice Harrison and myself dissented, saying that since Jensen had borne the heat of the battle to secure the result that recognized the veterans preference law, he should be the recipient of that benefit.

In a later case involving Charles F. Femling v. Montana State University, (Mont. 1986), [_ Mont. _,] 713 P.2d 996, 43 St.Rep. 235, this Court held that the legislature could retroactively withdraw all veterans preference rights without violating the due process clause of the state or federal constitution. I dissented in the Femling case on the ground that Femling had applied for state employment at a time when he had a statutory right to preference, he had claimed the preference, his right had vested and so he was entitled to the job.

Now, Jensen is back again. What happened to him before the Department was what we predicted, that the Department of Labor and Industry would never grant him the job to which he had proven his right, but in retaliation for beating the Department in court, the appointment would go to some other veteran. The majority opinion now condones this result.

I dissent from the majority opinion here on the grounds that Jensen was entitled to the job from the beginning, was entitled to the job by reason of his being successful in the first Jensen case, and that his right had become vested, as I argued in Femling, from the time that he demanded the benefit of the preference law in his application for appointment.

In an era when this country seems to be undergoing a binge of patriotism with country-rock singers blazing out their love for the flag, and our armed forces confronting every two-bit nation in the world, the attitude of this State through its legislature and courts towards the men and women who actually gave something of themselves to protect the country is a contradiction. Rudyard Kipling must have been looking down the long years to this State when he wrote of the difference in treatment accorded Tommy Atkins in peace-time and in war-time:

Then its Tommy this an’ Tommy that and “Tommy, “ow’s your soul?”
But its “Thin red line of ‘eroes” when the drums begin to roll.
The drums begin to roll my boys, the drums begin to roll.
Oh it’s “Thin red line of ‘eroes” when the drums begin to roll.
We aren’t no thin red ‘eroes nor we aren’t no blackguards too,
But single men in barricks most remarkable like you.
An’ if sometimes our conduck isn’t all your fancy paints
Why, single men in barricks don’t grow into plaster saints.
While its Tommy this and Tommy that an’ “Tommy fall be’ind”,
But it’s “Please to walk in front, sir” when there’s trouble in the wind.
There’s trouble in the wind, my boys, there’s trouble in the wind.
Oh it’s “Please to walk in front, sir”, when there’s trouble in the wind.

MR. JUSTICE MORRISON joins in the dissent of MR. JUSTICE SHEEHY.


author: MR. CHIEF JUSTICE TURNAGE

text:
    RICHARD WALCH, Petitioner and Appellant, v. UNIVERSITY OF MONTANA, Respondent and Respondent.
    No. 85-527.
    Submitted on Briefs Jan. 30, 1985.
    Decided April 17, 1986.
    716 P.2d 640.

      Datsopoulos, MacDonald & Lind, Edward A. Murphy, Missoula, for petitioner and appellant.
    Mary Elizabeth Kurz, U. of M. Legal Counsel, Missoula, Jayne Mitchell, Personnel Division, Dept, of Admin., Helena, for respondent and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Richard Walch petitioned the District Court for the enforcement of an order of the Board of Personnel Appeals. The District Court dismissed his petition with prejudice for failure to state a claim for which relief can be granted. Walch appeals this dismissal.

The University of Montana (University) hired Walch in May, 1978, as a Maintenance Superintendent V, Grade 16. The University’s Physical Plant was reorganized on January 19, 1982, and Walch’s position was split into two separate positions. As a result, Walch’s classification was changed to Maintenance Superintendent IV, Grade 15. However, his salary remained exactly the same as it had been under the Grade 16 classification. The reason for this was because the University had been granted a pay plan exception which allows it to use a formula to maintain a differential between the craft salaries and the salaries of the management staff in the Physical Plant. Walch appealed the reclassification to the Board of Personnel Appeals (Board).

The Hearing Examiner for the Board conducted a hearing on November 8, 1982, pursuant to Section 2-18-1011, MCA and in accordance with the Administrative Procedure Act, Title 2, Chapter 4, MCA, to determine whether Walch had been aggrieved by the reclassification of his position. The examiner issued a Recommended Order on April 18, 1983, which stated that Walch’s responsibilities and position fell within the Grade 16 range rather than Grade 15. Thus, he had been aggrieved by the reclassification and was entitled to relief under Section 2-18-1012, MCA. The Board then ordered:

“Recommended Order
“Commencing with the receipt of this Order, the Personnel Division, Department of Administration, its officers, agents, and representatives shall change Richard A. Walch’s classification from Maintenance Superintendent IV, class code 189006, grade 15, to Maintenance Services Manager I, class code 899022, grade 16. They will continue to pay Mr. Walch in accordance with the formula designed for the management staff in the University of Montana’s Physical Plant, making whatever adjustments are required by this change in his classification title and pay grade level.
“Notice
“Exceptions to these Findings of Fact, Conclusions of Law, and Recommended Order may be filed within twenty days service thereof. If no exceptions are filed within such time, this Recommended Order shall become the Final Order of the Board . . .”

Neither Walch nor the University filed any exceptions to the Recommended Order which resulted in that order becoming the Final Order of the Board.

The University continued to pay Walch under the formula, established for the management staff which was the same amount it had been paying him before the Final Order. In March, 1984, Walch requested an interpretation of the Recommended Order from the Board. He contended that the Order required the University to pay him in accordance with the pay matrix for state employees under the Grade 16 level, rather than the formula set up for the management staff at the University.

The original hearing examiner conducted an investigation and issued an interpretation of the Recommended Order. In the report, she asserted that the intent of the order was that the University pay Walch in accordance with the pay plan exception formula, not in accordance with the pay matrix for state employees. Walch then filed exceptions to the Investigative Report.

The Board held a hearing on the matter and issued a Final Order on January 8, 1985. The Order stated that if Walch’s request for interpretation is deemed to be an exception to the Recommended Order, such exception was filed too late. But, if the request for interpretation is deemed to be a request to enforce the Recommended Order, then the District Court is the proper forum for such action, not the Board.

Walch then filed a petition to enforce in the District Court. The court found that the Recommended Order clearly required the University to pay Walch in accordance with the pay plan exception formula. Since Walch did not allege that the University was not paying him in accordance with this formula, the court dismissed the petition with prejudice for failure to state a claim for which relief can be granted.

The sole issue raised by appellant is whether the District Court erred in interpreting the Recommended Order as requiring the University to pay appellant according to the pay plan exception formula. However, in order to reach this issue, we must first determine whether the District Court had jurisdiction over the case since no timely exceptions to the Recommended Order were filed, nor did appellant file a timely appeal from the Final Order.

Appellant brought an action in the District Court to enforce the original order of the Board. This action is allowed by Section 2-18-1013, MCA, which provides:

“The board or the employee may petition for the enforcement of the board’s order and for appropriate temporary relief and shall file in the district court the record of the proceedings. Upon the filing of the petition, the district court shall have jurisdiction of the proceeding. Thereafter, the district court shall set the matter for hearing. After the hearing, the district court shall issue its order granting such temporary or permanent relief as it considers just and proper. No objection that has not been raised before the board shall be considered by the court unless the failure or neglect to raise the objection is excused because of extraordinary circumstances. The findings of the board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive.”

It is apparent that this statute places no time restraints upon the filing of an action to enforce. The action may be brought anytime after the Board’s order has been issued, provided it is brought within the statute of limitations period which is generally applicable to the filing of civil actions. Section 27-3-215, MCA. Thus, the District Court did have jurisdiction to hear the petition.

However, an action to enforce under Section 2-18-1013 is to be distinguished from an action for judicial review of a contested case under Section 2-4-702, MCA. The latter action must be brought within thirty days after service of a final agency decision, and the petitioner may contest the final decision of the agency. In an action to enforce, the petitioner cannot contest the agency decision. Therefore, appellant can prevail only if the University is not paying him according to the order as it was written.

Respondent contends that this action is being used as a means of circumventing the time requirements imposed by the Recommended Order and should not be allowed. Although that may have been appellant’s intention, circumvention of the time requirements is impossible in this case since no objection to the order can be raised. The inquiry is limited solely to the question of what the Recommended Order required the University to do — either to pay according to the formula or to pay according to the state pay matrix. The action is one to enforce the order as it is written; appellant cannot question the correctness of the order in this action. Therefore, there is no circumvention of any time requirements, statutory or administrative.

Having found that this action is proper, we now determine what the Recommended Order required. Although the language of the order is somewhat ambiguous, a close reading of the words used and the reasoning supplied in the order indicates that the University should pay appellant in accordance with the pay plan exception formula. The last sentence of the Recommended Order required the University to “continue” to pay appellant in accordance with the formula designed for the management staff. Had the Hearing Examiner meant for the University to pay appellant under the state pay matrix, she certainly would not have used the word “continue,” since appellant was already being paid under the formula set up for the management staff prior to the Order.

Appellant contends that the Order required “adjustments” in his pay. However, what the Order required was adjustments in his “classification title” and “pay grade level.” The fact that these adjustments were not meant to be an adjustment in pay is made clear in the paragraph preceding the Recommended Order. The examiner recognized that appellant could be aggrieved by a reclassification of his position even though his pay was not decreased. She stated:

“First of all, classification and grade level assignment are major components of the classification system. Changes in these components, even if they do not result in a change in salary, constitute potential bases for appeal. Secondly, there are no guarantees of permanence for either the pay plan exception or the formula by which Mr. Walch’s pay is calculated. Should either of these variables change, Mr. Walch’s classification title and grade level would resume being of primary importance in the determination of his salary.” (Emphasis added.)

This indicates that appellant’s classification title and grade level are not of primary importance in the determination of his salary now. Instead, the formula designed for the management staff was contemplated as being of primary importance in this determination. Moreover, the interpretation given by the original hearing examiner in the investigative report also makes clear that she intended for appellant to be paid according to the pay plan exception formula.

Therefore, since appellant is being paid in accordance with the Order of the Board, and since he has not alleged that the University is not paying him according to the formula, we affirm the District Court’s dismissal of the petition for failure to state a claim for which relief can be granted. Any objection to the Board’s Final Order or to being paid under the formula comes too late to be noticed on appeal.

Affirmed.

MR. JUSTICES MORRISON, WEBER, SHEEHY and HUNT concur.


author: MR. JUSTICE MORRISON

text:
    In re the MARRIAGE OF MARK WAYNE VINECKE, Petitioner and Respondent, and JUDY ANN VINECKE, Respondent and Appellant.
    No. 85-580.
    Submitted on Briefs March 6, 1986.
    Decided April 17, 1986.
    716 P.2d 638.

      Jones Law Firm, Blair Jones, Billings, for respondent and appellant.
    Berger Law Firm, Chris J. Nelson, Billings, for petitioner and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Respondent, Judy Vinecke, appeals the September 5, 1985, order of the Thirteenth Judicial District Court granting a fixed visitation schedule to Petitioner, Mark Vinecke. We affirm.

Mark filed a petition for dissolution on July 28,1984. At that time, Mark, Judy and their two minor children lived in Billings. During the pendency of the dissolution proceedings, Judy and the children moved to Butte; Mark continued to reside in Billings. The parties’ marriage was dissolved on December 3, 1984. Judy was granted custody of the two minor children, Keith and Kristen, with reasonable right of visitation awarded to Mark. At the time of dissolution, Keith was nearly three years of age and Kristen was one and a half.

In the ensuing months, Mark was permitted to visit the children once, on February 14, 1985, while he was in Butte on business. Following further unsuccessful attempts to arrange visitation, Mark filed a petition on May 21, 1985, requesting the court to grant a fixed visitation schedule.

The matter came on for hearing August 1, 1985. Mark testified that the court’s assistance was necessary to determine the question of reasonable visitation. He further testified that he made numerous attempts to arrange visitation, but that Judy did not have a phone and would not respond to his messages. Judy testified that Keith was a behavioral problem when he returned home following a month’s stay with Mark during August 1984, and that both Keith and Kristen had shown fear of Mark when he visited them in Butte.

The next witness was Dr. George Swaggerty, a clinical psychologist hired by Judy to determine whether the children had experienced trauma from Mark’s visit and the on-going conflict between Mark and Judy. Dr. Swaggerty testified that he believed the children were traumatized by inconsistent and collective visitation, and that visitation should be arranged on a graduated basis, with Mark seeing the children only for periods of several hours the first six months. Dr. Swaggerty felt that if things went well the first six months, then overnight visitation should follow.

By order dated September 5, 1985, the District Court granted Mark’s petition allowing fixed visitation, with visitation to occur for one month during the summer and on alternating holidays. The order contained the following findings and conclusions:

“The parties have been unable to implement visitation under a ‘reasonable times and places’ standard, with the result that petitioner seeks the adoption of a fixed visitation schedule, while respondent supports the suggestions of her clinical psychologist for a gradually-commencing and consistently-enlarging visitation program, as tolerances of the children allow.
“After consideration, it is concluded:
“That neither request is ideal from the standpoint of the best interests of the children, but respondent’s request suffers the additional disadvantage of being impractical both because of the geographical distance involved and the fact that the psychologist’s program requires reasoning and reasonableness by the parties, being ingredients which are not available in the circumstances of the attitudes and motivations of the parties.”

Judy appeals the order and raises the following issues:

1. Whether the District Court erred in failing to set forth specific findings of fact upon which the court concluded that Mark’s fixed visitation schedule was in the best interests of the minor children of the parties.

2. Whether the adoption by the District Court of Mark’s fixed visitation schedule constitutes an abuse of discretion in that it is not supported by the evidence and the visitation schedule does not serve the best interests of the minor children of the parties.

Judy asserts the District Court erred by failing to enter specific findings of fact and conclusions of law pursuant to Rule 52, M.R.Civ.P. We disagree. The last sentence of Rule 52(a), M.R.Civ.P. reads: “Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).” Rule 41(b) concerns involuntary dismissal of actions and does not apply in this instance. In Baker v. Baker (1982), 198 Mont. 371, 646 P.2d 522, 39 St.Rep. 1031, we held that the District Court did not err by failing to include specific findings and conclusions in its order specifying the husband’s visitation rights.

In the case at bar, although the district judge was not obligated to enter findings of fact and conclusions of law, the order does contain findings and conclusions. The findings of fact are: 1) the parties have been unable to implement reasonable visitation; 2) petitioner seeks a fixed visitation schedule; and 3) respondent desires a slowly enlarging visitation schedule as recommended by the clinical psychologist. The conclusions of law are: 1) neither request is ideal for the best interests of the children; 2) respondent’s request is impractical because of the geographical distance involved and that the clinical psychologist’s recommendation requires reasonableness by the parties which is lacking in both parties. These findings and conclusions are supported by substantial, credible evidence in the record.

Recently, in In Re The Custody and Support of B.T.S. (Mont. 1986), [219 Mont. 391,] 712 P.2d 1298, 43 St. Rep. 37, this Court remanded the case to the District Court for its failure to include sufficient findings in making an award of joint custody. In that case, we noted that Section 40-4-223, MCA, requires the District Court to consider the factors listed under Section 40-4-212, MCA, as well as other relevant criteria raised by the facts in evidence, such as the parents’ cooperation with each other and the distance between their residences. 43 St.Rep. 40, 41.

In Re B.T.S. is not controlling in this case for the issue is visitation, not joint custody, but we do note that in the present case, the district judge gave consideration to the children’s best interests, the parties’ attitudes toward each other, and the distance between the parties’ residences.

Judy argues that the granting of a fixed visitation schedule does not serve the best interests of the children, was not supported by the evidence and was an abuse of discretion by the District Court. We disagree. The record reveals Mark was granted a right to reasonable visitation under the dissolution judgment, but Judy did not have a phone and would not respond to his messages to allow him to arrange visitation. Mark visited the children once during the five months following the dissolution. As we said in Baker, supra, “As in so many cases where the word ‘reasonable’ visitation rights are put into the decree, the interpretation of the word ‘reasonable’ is left to two unreasonable parties.” 646 P.2d 524, 39 St.Rep. 1034. As in Baker, in this case the court’s aid was necessary to clarify the meaning of “reasonable.” The record shows the parties did not deal with each other reasonably. We find no abuse of discretion in the district judge’s conclusion that the lack of cooperation between Mark and Judy would prohibit implementation of graduated basis visitation. Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and GULBRANDSON concur.


text:
    In re the MARRIAGE OF MORTY PAUL FORNEY, Petitioners and Appellant, and SHELLY ANN FORNEY, Respondent and Respondent.
    No. 86-13.
    Submitted on Briefs March 21, 1986.
    Decided April 17, 1986.
    716 P.2d 635.
    Nye & Meyer, Jerrold L. Nye, Billings, for petitioner and appellant.
    Linda Harris, Billings, for respondent and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal by the husband from a judgment of the District Court of the Thirteenth Judicial District, Yellowstone County, awarding the wife maintenance in a marriage of short duration. We affirm.

Appellant Morty Forney (“husband”) and respondent Shelly Forney (wife”) were married in February 1984 after having lived together since June 1983. The parties separated less than a year after their marriage in December 1984. The husband filed his petition for dissolution of marriage in January 1985.

The case was tried to the District Court, sitting without a jury, in September 1985. During trial it was noted that the marriage of the parties produced no children and very little property. The parties agreed at trial that the property accumulated by them during the course of their marriage should be distributed between them with each retaining the property in his or her own possession or control. The husband also agreed to pay the joint obligations of the parties. The only issue remaining, therefore, was that of the wife’s request for maintenance.

At the time of trial, the wife was temporarily employed as a child therapist with this employment scheduled to conclude at the end of the month. The wife stated her necessary monthly expenses were in the sum of $1,686 and her net income from her job was only $1,000 per month. Therefore, she requested an award of maintenance from the District Court in the amount of $500 per month for 16 months.

The husband argued at trial that the wife was not entitled to any maintenance because after the parties separated in December of 1984, the wife purchased a house and a new car. The husband argues these obligations pushed the wife’s monthly expenses beyond what she could afford while earning $1,000 per month. The husband strongly stated that he should not be required to pay maintenance based on the fact that the wife chose to purchase things she could not afford after the parties separated.

The District Court considered the testimony of the parties and entered its findings of fact, conclusions of law, and decree of dissolution in November of 1985. The District Court concluded that the husband should pay maintenance to the wife in the sum of $400 per month for a period of 16 months. From this award of maintenance the husband appeals.

The husband presents a single issue for review by this Court: Whether the award of maintenance to the wife in this case was contrary to existing law?

As the husband succinctly states, this case essentially boils down to the question of whether or not the wife’s incurred expenses for a house and new vehicle after the parties’ separation were reasonable. The husband claims the wife chose to purchase a house ($685 a month) and a new car which she knew would greatly exceed her current monthly income of $1,000 when combined with her other necessary living expenses. The husband argues the wife chose to buy a house over cheaper housing possibilities, such as an apartment. Further, the wife chose to purchase a new car versus repairing her used car. The husband claims the law in Montana does not require him to pay, through maintenance, for the wife’s unnecessary extravagances after the parties separated.

The husband correctly points out the standards under which a spouse may be granted maintenance in this state. This Court in In Re Marriage of Korpela (1985), [219 Mont. 150,] 710 P.2d 1359, 42 St.Rep. 1912, stated that under Section 40-4-203, MCA, maintenance is allowed when the spouse seeking maintenance meets both of the following requirements: (1) the spouse seeking maintenance lacks sufficient property to provide for her reasonable needs; and (2) she is unable to support herself through appropriate employment. The husband argues in the instant case neither of the above requirements were used by the District Court in awarding maintenance to the wife. We disagree.

In his findings of fact, Judge Luedke recognized the unique problems the instant case presented. Judge Luedke also specifically recognized the appropriate standards for awarding maintenance in this state including the additional factor not mentioned by the husband which is the ability of the husband to pay maintenance and still meet his own needs. See, Korpela, [219 Mont. 150,] 710 P.2d 1360. As Judge Luedke explained in his finding of fact No. 7:

“The parties have accomplished their own division of property, leaving as the real issue in this case the respondent’s request for an award of maintenance for a sixteen month period. She seeks $500 per month, for a total of $8,000. Unlike the usual situation, where such a request is grounded upon the needs of the requesting party and the ability of the other party to pay, respondent’s basis for such award is founded primarily upon her claim that she lost money through the marriage and wants to be reimbursed. In that way, her request is as much an item of property settlement as it is of maintenance, although it is to be recognized that the marriage is still in force and petitioner has given no support to respondent since the separation.” (Emphasis added.)

We find, and the record supports, that the District Court correctly recognized the appropriate standards for awarding maintenance under Montana law and also correctly applied these standards to the facts of the instant case. The lower court recognized that the wife lacked sufficient property to provide for her reasonable needs and also that she was unable to support herself through appropriate employment because her job was scheduled to end shortly. Further, the lower court recognized that the husband had the financial resources to pay maintenance and still meet his own needs.

Finally, with regard to the house and car purchased by the wife after the separation of the parties, the District Court concluded, and we agree, that these expenses were not unreasonable. It appears that although the husband strongly argued at trial that the wife’s house and car purchases were extravagant, he provided nothing or little to Judge Luedke to establish just what would be a reasonable expense for the wife’s housing and transportation needs. Judge Luedke concluded, and the record supports, that these expenses were not unreasonable in light of the financial situation of the parties.

Lastly, it is important to note that the District Court had great latitude in awarding maintenance to the wife. As this Court stated:

“The determination of maintenance and the amount of maintenance are matters within the broad discretion of the District Court which this Court will not disturb unless clearly erroneous. In Re the Marriage of Schenck (Mont. 1984), [213 Mont. 310,] 692 P.2d 6, 9, 41 St.Rep. 2137, 2139. The findings and conclusions indicate the employment of conscientious judgment in arriving at a substantially just result. In Re the Marriage of Laster (1982), 197 Mont. 470, 643 P.2d 597, 601, 39 St.Rep. 737, 740.”

Korpela, 710 P.2d at 1361.

In conclusion, we hold the District Court’s award of maintenance in this action was properly made and supported by the record. We also find that the lower court employed “conscientious judgment in arriving at a substantially just result” in a case where a just result was difficult to achieve.

The judgment of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, SHEEHY and HUNT concur.