author: JUSTICE HARRISON

text:
    CAROL LEE COSGRIFFE, Plaintiff and Appellant, v. RICHARD COSGRIFFE, Defendant and Respondent.
    No. 93-075.
    Submitted September 16, 1993.
    Decided November 24, 1993.
    50 St.Rep. 1501.
    262 Mont. 175.
    864 P.2d 776.

      For Plaintiff and Appellant: Donald W. Molloy (argued) and Roberta Anner-Hughes (argued), Molloy Law Offices, Billings; and James D. Huegli, Portland, Oregon.
    For Defendant and Respondent: Jerome J. Cate (argued), The Cate Law Firm, Whitefish.
    For Amici Curiae: Robert J. Emmons (argued), Jean E. Faure (Montana Trial Lawyers) Great Falls; Rosemary Daszkiewicz (Northwest Women’s Law Center) Seattle, Washington; Joan Jonkel, Missoula; and John L. McKeon, Anaconda.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from an order of the District Court of the Thirteenth Judicial District, Yellowstone County, the Honorable Maurice R. Colberg, Jr., presiding, granting respondent Richard Cosgriffe’s motion for summary judgment. We reverse.

One issue is before this Court:

Whether § 27-2-216, MCA, the statute of limitations for claims involving childhood sexual abuse, violates the state or federal constitutions because it provides for retroactive application.

In January 1991, at the age of forty-one, the appellant Carol Cosgriffe filed a complaint in District Court pursuant to § 27-2-216, MCA, against respondent, Richard Cosgriffe, her natural father. Her complaint set forth several alleged instances of sexual abuse by respondent which she alleges occurred between the years 1965 and 1967, when she was between the ages of sixteen and nineteen. The appellant alleges that due to respondent’s abuse she has sustained severe emotional and physical injuries, including damage to her self esteem, an inability to maintain gainful, continuous employment, drug and alcohol dependency, sexual promiscuity, and an inability to maintain meaningful, long-term relationships. Appellant further alleges that it was only after consulting a psychiatrist and through counseling she discovered her problems were caused by the alleged abuse and that the discovery occurred only a short time prior to the filing of her complaint.

The respondent moved the court for summary judgment on the following grounds:

1. Section 27-2-216, MCA, violates the due process requirements of the Fourteenth Amendment of the U.S. Constitution.
2. Section 27-2-216, MCA, violates Article II, Section 17 (Due Process) and Section 31 (ex post facto laws) of the Montana Constitution.
3. Section 27-2-216(3), MCA, is unconstitutional because it is vague, uncertain and indefinite.

Following a thorough briefing of the matter before the District Court, the court granted respondent’s motion for summary judgment.

The legislative history indicates that § 27-2-216, MCA, was enacted in response to this Court’s opinion in E.W. v.D.C.H. (1988), 231 Mont. 481, 754 P.2d 817. In that case, this Court stated:

While this Court is aware of the horrifying damage inflicted by child molesters, it is not for us to rewrite the statute of limitations to accommodate such claims through judicial fiat. Such task is properly vested in the legislature.

E.W., 754 P.2d at 821.

Section 27-2-216, MCA, enacted in 1989, states in its entirety: 27-2-216. Tort actions — childhood sexual abuse. (1) An action based on intentional conduct brought by a person for recovery of damages for injury suffered as a result of childhood sexual abuse must be commenced not later than:
(a) 3 years after the act of childhood sexual abuse that is alleged to have caused the injury; or
(b) 3 years after the plaintiff discovers or reasonably should have discovered that the injury was caused by the act of childhood sexual abuse.
(2) It is not necessary for a plaintiff to establish which act, in a series of acts of childhood sexual abuse, caused the injury that is the subject of the suit. The plaintiff may compute the period referred to in subsection (l)(a) from the date of the last act by the same perpetrator.
(3) As used in this section, “childhood sexual abuse” means any act committed against a plaintiff who was less than 18 years of age at the time the act occurred and that would have been a violation of 45-5-502, 45-5-503, 45-5-504, 45-5-505, 45-5-507, 45-5-625, or prior similar laws in effect at the time the act occurred.

(4) The provisions of 27-2-401 apply to this section.

Turning our attention to the due process argument, respondent argues that § 27-2-216, MCA, as passed by the legislature, improperly revives a claim after that claim is barred by the conventional tort statute of limitations. In substance his argument is that the retroactive application of the newly adopted statute of limitations denies his federal and state constitutional rights. We disagree.

The real question is whether the legislature has the power to do what it did. Legislation repealing or extending the statute of limitations, with the effect of reviving claims previously barred, has consistently been upheld by the courts against due process objections.

These cases take the view, which we believe is the better view, that such legislation does not take away any defenses which would have been a vested right in the defendant in the case. The respondent in this case still has the affirmative defense that his daughter knew or should have known within the statutory period that her injuries were caused by the act of childhood sexual abuse. This is a fact question a jury must decide later; not one to be decided by this Court. See Chase Security Corp. v. Donaldson (1945), 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628; see Sum & Substance of Constitutional Law, 4th Ed. Van Alstyne, Karst and Gerard (1986). Substantive due process arguments advanced by the respondent fail when the question is examined under the applicable restraints:

[T]he restraints on legislation imposed by substantive due process as a source of constitutional protection for interests not specifically identified by explicit constitutional language could be summarized in a three-part formula: the legislation must: (a) seek to achieve a legitimate governmental purpose; (b) use means that are rationally related thereto; and (c) be neither arbitrary nor unreasonable in its effects.

Sum & Substance of Constitutional Law, at 258. Here, the respondent father concedes the legitimate governmental purpose of the legislation and that the means used are rationally related.

The District Court in granting summary judgment held, and the respondent argues, that the retroactive application of the newly adopted childhood sexual abuse statute of limitations places an unreasonable hardship and oppression on the respondent and that the statute, § 27-2-216(l)(b), MCA, basically destroys any limitations of actions and is unreasonable. This argument was very ably addressed by the Minnesota Court of Appeals. That court addressed the retroactive application of a statute which provides for sexual abuse claims and concluded:

Respondents’ arguments are without merit. Indeed, section 541.073 embraces a discovery rule, which, as respondents assert, may toll the start of the statute of limitations period for a long time after the abuse incident. Nonetheless, the statute plainly reflects awareness of the difficulty sexual abuse victims have in identifying and recognizing their injuries immediately. Research shows victims of sexual abuse may repress the memoiy of such incidents, and not discover the actual source of their problems for many years. [Footnote omitted.] In acknowledging this problem, the legislature, by enacting section 541.073, limits the possibility of the general statute of limitation barring a claim for sexual abuse, and holds the sexual abuser liable for his offenses. Because we are not in a position to judge the wisdom of the legislature, where, as here, the statute has a reasonable relation to the state’s legitimate purpose of affording sexual abuse victims a remedy, we reject respondents’ due process claims.

K.E. v. Hoffman (Minn. App. 1990), 452 N.W.2d 509, 513-14.

Respondent’s argument, based on the Fourteenth Amendment prohibition of retroactive legislation when it divests any private vested interest, is inapplicable, as the respondent has no “vested” interest under these facts. The respondent argues that the running of the previously-applicable statute of limitations vests him with a right to be free from the appellant’s claim after the expiration of the conventional statute of limitations.

Montana follows Campbell v. Holt (1885), 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483, in regard to due process and the retroactive application of statutes of limitation. This Court cited and explicitly adopted the majority holding of Campbell in Guiterman v. Wishon (1898), 21 Mont. 458, 461, 54 P. 566, 567, where the Court held:

Statutes of limitation, being somewhat arbitrary in their nature, and founded in public needs and public policy, may shorten the periods in which actions shall be commenced, or may extend them, and yet not disturb vested rights, or rights of property. Such is the established rule of the federal courts since Campbell v. Holt, supra, decided long subsequent to Gillette v. Hibbard, supra, and upon this theory the codes of this state were adopted.

We determine that Montana due process is not violated by the retroactive application of the statute here in question. The propriety of the actions of the state legislature in addressing a public need and a present public policy is not to be examined by this Court where we have previously stated that the statute has a reasonable relation to the legitimate purpose of the State.

The appellant, in arguing that § 27-2-216, MCA, was constitutional, notes that it is up to this Court to determine the statute’s scope by determining the legislature’s power, intentions and application of the statute, noting that the legislature’s intent is to be followed if at all possible. Section 1-2-102, MCA. Further, whenever common law and statutes conflict, the statute will take precedence. Section 1-1-108, MCA.

The legislature has specific powers to extend the statute of limitations. Western Holding Co. v. Northwestern Land and Loan Co. (1941), 113 Mont. 24, 120 P.2d 557. This Court, in Penrod v. Hoskinson, M.D. (1976), 170 Mont. 277, 552 P.2d 325, indicated that the legislature could extend the statute of limitations and apply it retroactively to reverse barred claims. “ ‘[0]ur Constitution does not forbid the enactment of retrospective laws generally ....’” Penrod, 552 P.2d at 327; quoting Dunham v. Southside National Bank of Missoula (1976), 169 Mont. 466, 548 P.2d 1383. There are no constitutional or statutory obstacles to legislative enactments of statutes relating to remedies that are retroactive in operation.

The trial court held the statute to be unconstitutional, as it did not meet Montana’s constitutional right to due process. In so holding, it failed to concede that E.W. was decided before the enactment of § 27-2-216, MCA. In finding the statute unconstitutional, the trial court incorrectly relied on Coady v. Reins (1872), 1 Mont. 424, for the proposition that the expiration of the statute of limitations is a vested right and that the respondent had a right to rely on it.

This Court in its 1872 ruling in Coady, held that “[t]he statute, then, that must determine the right of the plaintiff to bring this action, is the one in force when the same was brought.” Coady, 1 Mont. at 429. Some 84 years later, this Court, for all intents and purposes, reversed Coady in our holding in Johnson v. St. Patrick’s Hospital (1966), 148 Mont. 125, 417 P.2d 469. In Johnson, we criticized Coady, impliedly overruled it and noted that in 84 years the holding was never cited and that on the facts it was clearly distinguishable from Johnson. This Court, in Grey v. Silver Bow County (1967), 149 Mont. 213, 425 P.2d 819, cited the Johnson case, and upheld the discovery rule in a medical malpractice case. So that there is no question on what Johnson held, we clarify the record and conclude that Johnson overruled the Coady decision.

We find no merit in respondent’s argument that the statute is unconstitutional on its face. Section 27-2-216, MCA, is presumed constitutional. See Montana Milk Control Board v. Rehberg (1962), 141 Mont. 149, 376 P.2d 508. Respondent must prove the unconstitutionality “beyond a reasonable doubt.” Here, respondent has failed to meet that burden.

We hold that the plain language of § 27-2-216(l)(b), MCA, expressly allows the appellant to bring claims for childhood sexual abuse within three years of discovering that the injuries were allegedly caused by the abuse. The statute clearly overturns the rationale of our holding in E. W. and coincides with this Court’s suggestion that the legislature is the proper body to change the law. The plain meaning of the statute cannot lead to an interpretation that the respondent suggests, which is the appellant’s action accrued upon her awareness of the injury and there is no requirement of discovery of the cause of the injury.

Courts throughout the country have applied the discovery rule to cases where plaintiffs were aware of the sexual assaults at or before the age of majority, but were unaware of the causal connection between the abuse and the physical and psychological problems they encountered. Annotation, Running of Limitations Against Action for Civil Damages for Sexual Abuse of Child, 9 A.L.R. 5th 321, 343-47 (1993). In so holding, these courts have structured a broad interpretation of the discovery rule, which tolls the running of the statute until there is: 1) a discovery of the injury; and 2) a discovery of the cause of the injury. See Annotation, Running of Limitations Against Action for Civil Damages for Sexual Abuse of Child, 9 A.L.R. 5th 321, 343-47 (1993).

We note that the discovery doctrine relied on in E.W. predated the legislative enactment of the statute of limitation of § 27-2-216, MCA, which extends the statute of limitation until “3 years after the plaintiff discovers or reasonably should have discovered that the injury was caused by the act of sexual abuse.” Here, there is a genuine issue of material fact as to when the appellant knew or should have known of her injury and its cause.

We reverse the District Court’s ruling of summary judgment and remand the case for trial.

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


source: Caselaw Access Project

license: Public Domain

text:
    IN THE MATTER OF THE CUSTODY AND PARENTAL RIGHTS OF M.D., a/k/a M.S., A Youth in Need of Care.
    No. 93-048.
    Submitted on Briefs September 23, 1993.
    Decided November 30, 1993.
    50 St.Rep. 1505.
    262 Mont. 183.
    864 P.2d 783.

      For Appellant: Michael Donahoe, Donahoe & Yeshe, Helena.
    For Respondent: Joseph P. Mazurek, Attorney General, Christian D. Tweeten, Assistant Attorney General, Mike McGrath, Lewis and Clark County Attorney, Carolyn A. Clemens, Deputy County Attorney, and Randi Hood, Attorney for the Youth, Helena.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Appellant James Lee Cameron (Cameron) appeals the order of the First Judicial District Court, Lewis and Clark County, which terminated his parental rights over his daughter, M.D. We affirm.

Cameron is M.D.’s natural father. On September 4,1990, Cameron pled guilty under North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, to two counts of felony sexual assault. One count to which Cameron pled guilty alleged that he sexually assaulted M.D., who was eleven years old.

On November 15, 1990, the court sentenced him to twenty years with five years suspended on each count. Cameron appealed and we affirmed in State v. Cameron (1992), 253 Mont. 95, 830 P.2d 1284.

Cameron is incarcerated at the Montana State Prison. His expected discharge date is November 1998. He was denied parole in August 1992. The parole board determined that Cameron needed to complete phase II of the sex offender program before it would grant him parole.

Phase II of the sex offender program requires the offender to admit his wrongdoing. Cameron, however, maintains that he did not sexually assault M.D., and thus, he refuses to complete phase II of the program.

On July 17, 1991, the State filed a petition seeking a declaration that M.D. was a youth in need of care. On August 8,1991, following a hearing, the court found that M.D. was a youth in need of care.

A social worker with the Lewis and Clark County Department of Family Services (DFS) prepared a treatment plan and transmitted it to Cameron at the prison. Cameron refused to sign the plan.

On April 7,1992, the State filed a petition to terminate Cameron’s parental rights. The State sought to terminate Cameron’s parental rights because: he was incarcerated for sexually assaulting M.D.; a treatment plan was not practical; and the length of his prison term precluded his ability to care for the needs of M.D.

Cameron filed a motion to dismiss and a hearing on the motion was held on August 19, 1992. The District Court denied the motion to dismiss on August 28,1992.

On October 15,1992, the court held a hearing on the State’s petition to terminate Cameron’s parental rights. At the hearing the State presented evidence that: 1) Cameron refused to sign the treatment plan; 2) Cameron had been incarcerated for more than one year; 3) the parole board would not grant Cameron parole until he completed phase II of the sex offender program; 4) Cameron had to admit that he sexually abused M.D. to complete phase II of the program; and 5) it was probable that Cameron would stay in prison until November 1998, since he continued to deny that he sexually abused M.D.

The District Court issued its findings of fact, conclusions of law, and order on November 20,1992, and terminated Cameron’s parental rights. This appeal followed.

We restate the issues as follows:

1. Did the petition for termination of Cameron’s parental rights state a claim upon which relief could be granted under § 41-3-609, MCA?

2. Was the District Court’s decision to terminate Cameron’s parental rights supported by substantial evidence?

3. Did the District Court improperly rely on Cameron’s Alford plea to terminate his parental rights?

Since M.D. has been adjudicated a youth in need of care, we note that this determination meets the threshold requirement of finding dependency, abuse or neglect. In re B.H.M., C.M.M., & J.T.H. (1990), 245 Mont. 179, 186, 799 P.2d 1090, 1095. We presume the correctness of a district court’s decision to terminate parental rights and we will not overturn that decision “unless there is a mistake of law or a finding of fact not supported by substantial credible evidence that would amount to a clear abuse of discretion.” In re S.P. (1990), 241 Mont. 190, 194, 786 P.2d 642, 644. Accordingly, our review extends to the record to determine if the trial court appropriately terminated Cameron’s parental rights.

I

Did the petition for termination of Cameron’s parental rights state a claim upon which relief could be granted under § 41-3-609, MCA?

Cameron contends that the State’s petition lacked sufficient grounds for terminating his parental rights. He asserts that § 41-3-609(l)(c)(i), MCA, requires the implementation of a court-ordered treatment plan. He argues that, since no court-ordered treatment plan existed in his case, the allegations in the petition did not satisfy § 41-3-609(l)(c)(i), MCA, and the court incorrectly terminated his parental rights. We disagree.

We have previously held that § 41-3-609, MCA, does not require the implementation of a court-ordered treatment plan in every case. In re C.L.R. (1984), 211 Mont. 381, 384-86, 685 P.2d 926, 928 799 P.2d at 1094. In C.L.R., we held that § 41-3-609, MCA, did not require a treatment plan where the parent was incarcerated for a long period of time and the treatment plan was unworkable. 685 P.2d at 928. Moreover, the Legislature, in its first session after our decision in C.L.R., eliminated any doubt inherent in the statute when it added the following subsection:

(4) A treatment plan is not required under this part upon a finding by the court following [a] hearing if:
(b) the parent is incarcerated for more than 1 year and such treatment plan is not practical considering the incarcerationl]

Section 41-3-609(4)(b), MCA.

Here, after the required hearing, the District Court found that Cameron was incarcerated for more than one year and a treatment plan was not practical because Cameron refused to complete phase II of the sex offender program at the prison. He also failed to sign the treatment plan proposed by DFS. As the District Court noted, Cameron “seems to think he can throw sand in the wheels of judicial proceedings and then take advantage of his action or lack thereof.” We will not permit Cameron to complain of an error he created.

We conclude that the District Court correctly followed the statutory mandate of § 41-3-609, MCA. The court found that Cameron was incarcerated for more than one year and the treatment plan was not practical because Cameron would not complete phase II of the sex offender program and he would not sign the proposed plan. We hold that § 41-3-609, MCA, does not require the implementation of a court-ordered treatment plan in this case and, therefore, the petition stated a claim upon which the court could grant relief.

II

Was the District Court’s decision to terminate Cameron’s parental rights supported by substantial evidence?

Cameron argues, similar to his first argument, that the State did not prove that a court-ordered treatment plan existed, and therefore, the District Court should not have terminated his parental rights. This argument lacks merit.

Again, a court-ordered treatment plan is not required in this case. Section 41-3-609(4)(b), MCA. Thus, the court is only required to determine that:

the child is an adjudicated youth in need of care and
the conduct or condition of the parent rendering [him] unfit is unlikely to change within a reasonable time[.]

Section 41-3-609(l)(c)(ii), MCA. Further, § 41-3-609(2), MCA, states:

[i]n determining whether the conduct or condition of the parent[ ] is unlikely to change within a reasonable time,.... the court shall consider but is not limited to the following:
(e) present judicially ordered long-term confinement of the parent[.]

Here, the District Court, in its findings and conclusions, noted that M.D. was designated a youth in need of care. The court concluded that Cameron’s incarceration made him unfit to care for the physical, mental, emotional and psychological needs of M.D. The court also concluded that the situation was unlikely to change within a reasonable time because Cameron was unwilling to comply with recommended treatment and he remained in prison.

We conclude that the court’s findings are supported by substantial evidence and its conclusions are well grounded in law. Cameron is incarcerated at the Montana State Prison and he will probably remain there until November 1998. We hold that the evidence was sufficient to support the court’s decision to terminate his parental rights.

III

Did the District Court improperly rely on Cameron’s Alford plea to terminate his parental rights?

Cameron argues that the court erred by using his Alford plea to terminate his parental rights. Conversely, the State contends, and we agree, that the court did not rely on Cameron’s Alford plea to terminate his parental rights. Rather, the court terminated Cameron’s parental rights because his incarceration made him unfit to care for the needs of M.D.

The nature of Cameron’s Alford plea is completely irrelevant to the termination of his parental rights. Although he pled guilty with the Alford plea, the court, in terminating Cameron’s parental rights, only considered his incarceration, the length of his prison sentence and his refusal to complete sex offender treatment. See § 41-3-609(l)(c)(ii) and (2)(e), MCA.

We distinguish between Cameron’s continuing refusal to comply with treatment and his Alford plea, which he used to plead guilty. The District Court is not punishing Cameron, as he suggests, for using the Alford plea. Rather, Cameron’s continuing claim of innocence and his refusal to admit his wrongdoing has extended his stay at the prison.

We hold that the District Court did not use Cameron’s Alford plea to terminate his parental rights. We also hold that the District Court appropriately terminated Cameron’s parental rights.

Affirmed.

JUSTICES GRAY, TRIEWEILER, NELSON and WEBER concur.


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WILLARD S. DEAN, JR., Defendant and Appellant.
    No. 93-149.
    Submitted on Briefs August 26, 1993.
    Decided November 30, 1993.
    50 St.Rep. 1508.
    262 Mont. 189.
    864 P.2d 781.

      For Defendant and Appellant: Jennifer Bordy, Berry & Bordy, Bozeman.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Kathy Seeley, Assistant Attorney General, Helena; Mike Salvagni, Gallatin County Attorney, and Marty Lambert, Deputy County Attorney, Bozeman.
   JUSTICE HUNT

delivered the Opinion of the Court.

Defendant/Appellant Willard S. Dean, Jr., appeals from several orders and a judgment of the Eighteenth Judicial District Court, Gallatin County, denying appellant’s motion to dismiss, jury verdict for felony assault, and motion for judgment notwithstanding the verdict or new trial.

We affirm.

We determine the following issues to be dispositive:

1. Did the District Court err when it denied appellant’s motion to dismiss because appellant’s statement to the victim that she was lucky he was not shooting the weapon shows he did not commit an assault?

2. Did the District Court err when it instructed the jury that creating a reasonable apprehension of serious bodily injury with the use of a weapon was a felony?

The victim’s boyfriend and appellant were friends and teammates, and lived near each other. Appellant met the victim in May 1992. At a party soon thereafter, the victim offered to loan appellant $285 so that he could attend a summer basketball camp in California. Soon thereafter, the victim and appellant had a sexual encounter.

The night of the assault, the victim and her boyfriend had an argument wherein she told him about her offer to loan money to appellant and about their sexual encounter. That same evening, the victim approached appellant and told him she did not want to see him or talk to him anymore and that she would not be lending him the money. The victim then returned to her boyfriend’s apartment. About an hour later, appellant went to the boyfriend’s apartment, where the two men argued loudly for several minutes. In that argument, appellant accused the boyfriend of telling appellant’s female roommate about another woman he was dating. The two men went to appellant’s apartment wherein appellant confronted his female roommate, and she denied that the boyfriend told her about the other woman. The two men then walked toward the boyfriend’s apartment while appellant told the boyfriend that the victim had been unfaithful to him with several other men. After arriving at the boyfriend’s apartment, appellant yelled at the victim with his arms out, trying to intimidate her. Appellant then backed away and said that he was “pissed off’ because the victim had ruined his plans to attend the basketball camp and that he was “going to pull the $285 out of [her] ass.” When appellant had nearly backed out of the boyfriend’s apartment, he pulled a loaded gun out of his pocket, pointed it at the victim from about fifteen feet away, and said, “[y]ou’re lucky I ain’t shootin’,” or “[y]ou’re lucky I’m not the shooting type.” Then appellant put the gun down at his side and left the apartment. Both the victim and her boyfriend testified that they were frightened by appellant’s actions with the gun. After approximately ten minutes, the victim and her boyfriend saw appellant driving slowly past the apartment. Thereafter, they fled to her apartment where she called her parents, who in turn, called the police.

On June 8, 1992, appellant was charged by information with the crime of felony assault, in violation of § 45-5-202(2), MCA. On October 30, 1992, a jury found appellant guilty of that charge.

I.

Did the District Court err when it denied appellant’s motion to dismiss because appellant’s statement to the victim that she was lucky he was not shooting the weapon shows he did not commit an assault?

Appellant argues that the District Court erred when it denied appellant’s motion to dismiss for failure to state a claim of felony assault. Appellant reasons that because of his statement to the victim that he was not shooting, or was not the shooting type, his mental state was not subject to question, and thus he did not commit a crime. Appellant argues that this statement constituted a conditional threat, and as a result, demonstrated that he did not have the requisite mental state to complete the crime of felony assault.

First, appellant is mistaken that his statement was a conditional threat. His statement to the victim contained no condition whatever. The victim was neither given a condition with which she could comply in order not to be shot, nor was she assured that her “luck” might not run out before appellant lowered the gun and left the apartment. The victim testified that she was frightened.

Second, appellant has misinterpreted the requisite proof of mental state for felony assault. Section 45-5-202(2), MCA, provides in pertinent part:

A person commits the offense of felony assault if he purposely or knowingly causes:
(b) reasonable apprehension of serious bodily injury in another by use of a weapon....

In State v. Cope (1991), 250 Mont. 387, 397, 819 P.2d 1280, 1286, we held that it is not necessary for an assailant to intend to cause apprehension when committing felony assault. In Cope, the defendant, during his arrest, picked up a pistol and began swinging it toward the arresting officer. The defendant claimed he was only trying to surrender the weapon and did not intend to cause apprehension of serious bodily injury. As a result, Cope argued, as has appellant, that he did not possess the requisite mental state for felony assault. Although the mental state issue in Cope does not involve a statement by the defendant to the victim, our reasoning in that case applies here. In Cope, we held that a person only need be aware that his conduct would probably cause that result. Cope, 819 P.2d at 1286 (relying on § 45-2-101(33), MCA). Clearly, appellant was aware that when he drew a gun and pointed it at the victim, his conduct would probably cause her reasonable apprehension of serious bodily injury. Specifically, appellant was aware that the victim could reasonably have feared that she might be shot. Thus, appellant’s mental state was in question and the court properly instructed the jury on this issue.

Finally, the information and affidavit in support clearly established probable cause to believe that appellant may have committed the crime of felony assault. After informing the deputy county attorney of the facts leading up to the alleged assault, the victim stated that appellant pointed a gun at her, and she was “shocked and stood there with extreme fear.” The victim’s statement was sufficient in itself to support the application for leave to file the information. The motion to dismiss was properly denied.

II.

Did the District Court err when it instructed the jury that creating a reasonable apprehension of serious bodily injury with the use a weapon was a felony?

Appellant argues that the District Court erroneously refused his proposed jury instructions regarding the requisite mental states for felony assault. In State v. Hall (1990), 244 Mont. 161, 172, 797 P.2d 183, 190, we said that if jury instructions, “reviewed as a whole, fully and fairly present the law to the jury, the jury has been properly instructed.” Here, the District Court refused several of appellant’s proposed jury instructions regarding a defendant’s requisite mental state because they were either confusing or commented on the evidence. In their place, the court offered the followingjury instructions, in pertinent part, regarding proof of felony assault:

INSTRUCTION NO. 5

A person commits the offense of felony assault if he purposely or knowingly causes reasonable apprehension of serious bodily injury in another by use of a weapon.

INSTRUCTION NO. 6

To convict the defendant of felony assault, the State must prove the following elements:

1. That the defendant caused reasonable apprehension of serious bodily injury to [the victim] by the use of a weapon;

2. That the defendant acted purposely and knowingly.

If you find from your consideration of the evidence that all of these elements have been proved beyond a reasonable doubt, then you should find the defendant guilty.

These instructions fully and fairly state the requisite proof for felony assault. See, § 45-5-202(2), MCA. Thus, the court did not err when it refused appellant’s instructions and so instructed the jury.

We affirm.

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


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DARRIN DOMINIC BRADLEY, Defendant and Appellant.
    No. 93-227.
    Submitted on Briefs October 21, 1993.
    Rehearing Denied Dec. 22, 1993.
    Decided November 30, 1993.
    50 St.Rep. 1511.
    262 Mont. 194.
    864 P.2d 787.

      For Appellant: Patrick F. Flaherty, Great Falls.
    For Respondent: Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; and David Gorton, Deputy Blaine County Attorney, Chinook.
   JUSTICE GRAY

delivered the Opinion of the Court.

Darrin Dominic Bradley (Bradley) appeals his convictions of the offenses of negligent homicide, negligent vehicular assault and failure to wear a seat belt, claiming ineffective assistance of counsel and an unconstitutional exclusion of Native Americans from the pool of prospective jurors. We conclude that the performance of Bradley’s counsel was not deficient and that Bradley has failed to establish that Native Americans were improperly excluded from the jury pool. Therefore, we affirm the District Corut.

On June 5, 1992, Bradley was involved in a three-vehicle accident while driving eastbound on U.S. Highway 2 near Chinook, Montana. Tammy Young (Young), another driver involved in the accident, suffered multiple traumatic injuries and died at the scene of the accident. The third driver, Matt Molyneaux (Molyneaux), received minor injuries.

Bradley was charged with, and pled not guilty to, negligent homicide, negligent vehicular assault, and failure to wear a seat belt. After a jury was impaneled, Bradley, a Native American, moved the District Court to discharge the jury, arguing that all Native Americans listed as prospective jurors had been excluded from serving on the jury. The District Court ascertained the basis for each peremptory challenge and challenge for cause, concluded that there was no concerted effort to exclude Native Americans, and denied the motion. The jury convicted Bradley on all charges following a trial held December 2,1992.

After eliciting extensive statements from the family and friends of Young and Bradley, the District Court sentenced Bradley to concurrent ten-year and six-month terms of incarceration for negligent homicide and negligent vehicular assault, respectively. The court suspended the sentences provided that Bradley obtain substance abuse counseling, perform community service, and serve 60 days in the county jail. Additionally, the terms of his suspended sentences required Bradley to pay a portion of his income into a trust fund established for the benefit of Young’s two children and for any counseling required by Molyneaux and Young’s husband and children as a result of the accident. The court also ordered restitution totaling $9,865.49 and fined Bradley an additional $20 for the seatbelt violation.

Bradley moved for a new trial claiming that he had received ineffective assistance of counsel. The District Court denied the motion because it was not filed within thirty days following the verdict as required by § 46-16-702, MCA. Bradley now requests this Court to set aside his convictions and remand for a new trial, reasserting his ineffective assistance of counsel claim and arguing that Native Americans were unconstitutionally excluded from the pool of prospective jurors by the court’s failure to have them personally served with jury summonses.

Should Bradley’s convictions be reversed on the basis that he received ineffective assistance of counsel?

Bradley asserts numerous deficiencies in his counsel’s performance at trial, including the failure to 1) give an opening statement; 2) move that the State’s witnesses be excluded from the courtroom; 3) obtain an accident reconstruction expert and other favorable witnesses; 4) object to the introduction of his blood test result from the state crime laboratory; 5) object to testimony by the investigating officers and treating medical personnel regarding Bradley’s state of sobriety; 6) offer jury instructions; and 7) present an effective closing argument. On the basis of these deficiencies, Bradley contends that his constitutional right to the effective assistance of counsel was violated.

This Court uses the two-part test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, to evaluate ineffective assistance of counsel claims. State v. Senn (1990), 244 Mont. 56, 58-59, 795 P.2d 973, 975. Under the first prong of that test, the defendant must prove that counsel’s performance was deficient by establishing that it fell below the range of competence reasonably demanded of attorneys in light of the Sixth Amendment. The second prong requires the defendant to demonstrate that counsel’s deficiency was so prejudicial that it denied the defendant a fair trial. To satisfy this requirement, the defendant must demonstrate a reasonable probability that the result of the proceeding would have been different but for counsel's deficient performance. Senn, 244 Mont. at 59, 795 P.2d 973.

We address first the alleged deficiencies regarding counsel’s failure to object to evidence of intoxication. Bradley contends that counsel’s performance was deficient because she did not object to the testimony of Dan Friede, Ric Munfrada, and Lorrain Dupree indicating that Bradley was intoxicated. According to Bradley, “lay persons” are incompetent to testify to intoxication under Rule 701, M.R.Evid.

Rule 701, M.R.Evid., limits the testimony of lay witnesses to opinions or inferences which are rationally based on the witness’ perceptions and which further a clear understanding of the witness’ testimony or the determination of a fact at issue. This rule does not preclude lay witnesses from testifying to a person’s state of intoxication. Commission Comment, Rule 701, M.R.Evid.; State v. Hardy (1980), 185 Mont. 130, 134, 604 P.2d 792, 795.

The testimony of Friede, Munfrada, and Dupree met the requirements of Rule 701, M.R.Evid. These three witnesses testified that they had observed Bradley following the accident and that, based on their observations, he was intoxicated. The testimony was relevant to the jury’s determination of whether Bradley committed negligent homicide and negligent vehicular assault. Thus, there was no basis for counsel to object to the testimony of Friede, Munfrada and Dupree under Rule 701, M.R.Evid.

Bradley also contends that counsel’s performance was deficient because she faded to object on hearsay grounds to the introduction of the state crime laboratory report indicating a blood alcohol content of 0.12. The report is hearsay under Rule 801(c), M.R.Evid., if it is introduced for the truth of the results shown. It may still be admitted into evidence, however, if “otherwise provided by statute, these rules, or other rules applicable in the courts of this state.” Rule 802, M.R.Evid.

Rule 803(8), M.R.Evid., specifically provides that a written report from the state crime laboratory is not excluded by the hearsay rule if the State timely notifies the court and opposing party in writing of its intention to offer the report in evidence. Here, the State complied with the notification requirement contained in the rule. It indicated on the omnibus checklist filed more than three months prior to trial that the report had been supplied to Bradley. Indeed, Bradley acknowledged in his brief supporting a motion to suppress evidence that the State had disclosed its intent to introduce the report. Thus, the report containing the blood test result was within the hearsay exception contained in Rule 803(8), M.R.Evid.

Bradley also contends that counsel’s performance was deficient because she did not object to the foundation laid by the State for introducing the report. Specifically, he argues that the foundation was inadequate because the State did not call the laboratory analyst who performed the test as a witness to complete the chain of custody regarding the blood sample.

In State v. Zackuse (1992), 253 Mont. 305, 833 P.2d 143, we determined that the State was not required to call as a witness each person who handled drug evidence in order to establish its chain of custody. Zackuse, 833 P.2d at 145. A completed form issued by the state crime laboratory that included a chain of custody log listing the names of the persons at the lab who handled the evidence was sufficient to establish the final fink in the drug evidence’s chain of custody. Zackuse, 833 P.2d at 145.

Here, Munfrada and Greg Szudera, a sergeant with the Montana Highway Patrol, testified at length concerning the chain of custody of the blood sample from the time it was drawn to when it was mailed to the crime laboratory. The State also introduced a completed form from the crime laboratory which listed the names of all the persons at the lab who handled the blood sample. This form is sufficient to complete the chain of custody under Zackuse. The testimony elicited and the crime lab form provided sufficient foundation for admitting the blood test report.

Counsel’s failure to oppose the admission of evidence, absent a legal basis for doing so, does not constitute deficient performance. See State v. Christenson (1991), 250 Mont. 351, 358-60, 820 P.2d 1303, 1308-09. Thus, we conclude that Bradley’s counsel’s failure to object to the testimony and state crime laboratory report regarding his state of intoxication does not constitute deficient performance and, therefore, does not meet the first prong of the Strickland ineffective assistance of counsel test.

The remaining deficiencies in counsel’s performance alleged by Bradley also do not provide a basis for reversing his convictions. Decisions regarding the presentation of opening and closing statements, submission of jury instructions, procurement of witnesses, and exclusion of witnesses from the courtroom constitute trial tactics. This Court will not second-guess trial tactics and strategy when evaluating counsel’s performance. State v. Johnstone (1990), 244 Mont. 450, 465, 798 P.2d 978, 987.

Finally, we note that Bradley relies extensively on material outside the record to establish an exculpatory theory of the accident in an effort to show that counsel erred by failing to procure its own expert witness and call an investigating insurance adjuster as a witness. This Court’s review of allegations on direct appeal, however, is confined to the record. Section 46-20-701, MCA; State v. Schoffner (1991), 248 Mont. 260, 268, 811 P.2d 548, 553. Thus, the non-record material provides no basis for finding a deficiency in counsel’s performance.

We conclude that the performance of Bradley’s counsel was not deficient under the first prong of the Strickland test. Therefore, we hold that Bradley is not entitled to a reversal of his convictions and a new trial based on his ineffective assistance of counsel claim.

Is Bradley entitled to reversal of his convictions because the District Court failed to have Native Americans personally served with jury summonses?

After the jury had been selected, Bradley’s counsel orally moved the court to discharge the jury, arguing that no Native Americans had been selected to serve. The District Court determined that the State had a legitimate nondiscriminatoiy reason for exercising each of its peremptory challenges and that Bradley’s counsel had agreed with all challenges for cause. On that basis, the District Court concluded that the State had made no concerted effort to exclude Native Americans from the jury. On appeal, Bradley asserts no error by the District Court in this regard.

On appeal, Bradley advances a nebulous argument concerning the District Court’s failure to have jury summonses personally served on Native Americans who had been served by mail and had faded to appear. He apparently argues that the District Court’s failure to order personal service excluded Native Americans from the pool of prospective jurors, violating his constitutional right to a jury drawn from a representative cross-section of the community under Duren v. Missouri (1979), 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579, and constituting purposeful discrimination based on race under Whitus v. Georgia (1967), 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599. We disagree.

To establish a prima facie case under either Duren or Whitus, a defendant is required to show a statistical discrepancy between the percentage of prospective jurors and persons in the community who are members of the allegedly excluded class. Duren, 439 U.S. at 364, 99 S.Ct. at 668; Whitus, 385 U.S. at 550-51, 87 S.Ct. at 646-47. Bradley has failed to make any showing that the pool of prospective jurors contained an inadequate representation of Native Americans. Thus, based on the record before us, we cannot conclude that Bradley’s right to a juiy drawn from a cross-section of his community was violated or that discrimination based on race occurred.

We hold that the failure to personally serve the Native Americans with jury summonses does not entitle Bradley to a reversal of his convictions.

Affirmed.

JUSTICES HARRISON, HUNT, TRIEWEILER and WEBER concur.


text:
    BEKKI CRAIG, Petitioner, v. MONTANA TENTH JUDICIAL DISTRICT COURT, FERGUS COUNTY, THE HONORABLE PETER L. RAPKOCH, Presiding Judge, Respondent.
    No. 93-518.
    Dated November 30, 1993.
    50 St.Rep. 1515.
    262 Mont. 201.
    864 P.2d 791.

      For Petitioner: Craig R. Buehler, Lewistown.
    For Respondent: Thomas P. Meissner, Fergus County Atty., Lewistown; Joseph P. Mazurek, Atty. Gen., Elizabeth Baker, Asst., Helena; Jon A, Oldenburg, Peter Rapkoch, District Judge, Fergus County, Lewistown.
   OPINION AND ORDER

Petitioner Bekki Craig (Bekki) has petitioned this Court for a writ of supervisory control. Bekki alleges that the District Court has committed “manifest error and gross injustice” in proceedings involving an action on a Petition for Temporary Investigative Authority and Protective Services.

Because we are denying the petition, we decline to discuss the factual allegations made by Bekki.

One issue is dispositive here: whether the petition satisfies the elements necessary for this Court to accept jurisdiction and issue a writ of supervisory control.

Extraordinary writs are governed by Rule 17, M.R.App.P., which provides, in pertinent part:

(a) The supreme court is an appellate court but it is empowered by the constitution of Montana to hear and determine such original and remedial writs as may be necessary or proper to the complete exercise of its jurisdiction. The institution of such original proceedings in the supreme court is sometimes justified by circumstances of an emergency nature, as when a cause of action or a right has arisen under conditions making due consideration in the trial courts and due appeal to this court an inadequate remedy, or when supervision of a trial court other than by appeal is deemed necessary or proper.

A writ of supervisory control is one form of extraordinary writ.

We have previously held that the assumption of original jurisdiction for the purpose of exercising supervisory control over a district court is appropriate only when:

(1) Constitutional issues of major state-wide importance are involved;
(2) The case involves purely legal questions of statutory and constitutional construction; and
(3) Urgency and emergency factors exist, making the normal appeal process inadequate.

State ex rel. Nelson v. District Court (1993), 50 St.Rep. 1447,_Mont. _, 863 P.2d 1027, Therefore, before we will even consider the merits of a petition for a writ of supervisory control, the petition must satisfy these three mandatory, threshold elements.

In this case, Bekki’s petition does not meet the three elements necessaiy for the issuance of a writ of supervisory control; in fact, her petition does not meet even one requirement. The petition does not raise any constitutional issues of major state-wide importance, does not involve legal questions of statutory and constitutional construction, and does not allege facts which give rise to an emergency whereby the normal appeal process would be inadequate. We note that Bekki’s petition does not even address the three criteria, but merely recites facts which support the allegation that the District Court erred in its decision. The threshold showing has not been met and, under these circumstances, a writ of supervisory control can not and will not issue.

We note an increasing number of petitions for extraordinary relief are being filed in this Court, especially in domestic relations and related cases such as this. We take this opportunity to re-emphasize that we will not consider such petitions absent the petitioner bringing his or her application within the requirements of Rule 17(a), M.R.App.R, as interpreted by our prior decisions in this area of the law. The filing of a petition, where compliance with those legal mandates is not clearly articulated in the petition, and, in fact, where such prerequisites do not exist, is wasteful of the time and resources of counsel, of the trier-of-fact, of this Court, and, most importantly, merely delays the ultimate resolution of the underlying issues to the detriment of the litigants involved.

IT IS HEREBY ORDERED that Bekki’s petition for a writ of supervisoiy control should be and the same is DENIED.

IT IS HEREBY FURTHER ORDERED that the Clerk of this Court serve counsel and the District Court by mail with a copy of this Opinion and Order.

Dated this 30th day of November, 1993.

J. A. TURNAGE, Chief Justice

JOHN CONWAY HARRISON, Justice

TERRY N. TRIEWEILER, Justice

WILLIAM E. HUNT, SR., Justice

KARLA M. GRAY, Justice

JAMES C. NELSON, Justice

FRED J. WEBER, Justice


author: DISTRICT JUDGE SHERLOCK

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. DAN RINEHART, Defendant and Respondent. STATE OF MONTANA, Plaintiff and Appellant, v. CHARLES W. McATEE, Defendant and Respondent.
    No. 93-072.
    Submitted on Briefs September 17, 1993.
    Decided December 2, 1993.
    50 St.Rep. 1517.
    262 Mont. 204.
    864 P.2d 1219.

      For Plaintiff and Appellant: Joseph P. Mazurek, Attorney General, Michael Wellenstein, Assistant Attorney General, Helena; Larry D. Epstein, County Attorney, Cut Bank.
    For Defendants and Respondents: James A. Johnson, Shelby (Rinehart), and Robert A. Yunck, Cut Bank (McAtee).
   DISTRICT JUDGE SHERLOCK

delivered the Opinion of the Court.

The State of Montana appeals an order of the Ninth Judicial District Court, Glacier County, suppressing evidence seized from defendant Dan Rinehart’s residence pursuant to a search warrant issued July 8, 1992. The District Court held that the affidavit supporting the application for the search warrant failed to establish probable cause. We reverse.

During the first week of June 1992, the Glacier County Sheriff’s Office received a referral from Officer Michael Parker, Indian Investigator for the Bureau of Indian Affairs (BIA) on the Blackfeet Reservation, concerning a Crimestoppers’ tip received by the BIA. The anonymous tip provided information that Dan Rinehart (Rinehart), a non-Indian resident on the reservation, was growing marijuana at his home.

On or about June 18, 1992, the Glacier County Sheriff’s Office received a report from Officer Dale Stone, Assistant Chief of Police of the Columbia Falls Police Department, regarding allegations made by B.W., a thirteen-year-old girl, that Rinehart had sexually assaulted her in his home in Glacier County. This report also stated that B.W. had described a marijuana-growing operation that Rinehart conducted in a concealed room in his home.

Glacier County Sheriff’s Deputies Wayne Dusterhoff and Audrey Anderson interviewed B.W. in Columbia Falls on June 25, 1992. In addition to discussing the sexual assault allegation, the deputies questioned B.W. regarding whether Rinehart was growing marijuana. B.W. stated to the deputies that she had personally observed Rinehart’s grow operation. She described the location of the concealed room in Rinehart’s residence and also described the marijuana plants she had seen. B.W. told the deputies how Rinehart picked the leaves from the plants and dried them out, that he smoked marijuana, and that he had books on growing marijuana.

Officer Stone had told Deputy Dusterhoff that in the past B. W. had provided information to the Columbia Falls police that led to a criminal conviction and that B.W. was a reliable witness.

Based on the information from B.W. and the Crimestoppers’ tip, Deputy Dusterhoff submitted an application for a search warrant on July 8,1992, to search Rinehart’s residence. The District Court issued the warrant on July 8,1992, and authorities from the Glacier County Sheriff’s Office, the BIA and the FBI conducted the search the following day. During the search, the authorities seized a large amount of drying marijuana and various items used in growing marijuana.

As a result of the search, Rinehart and his nephew, Charles McAtee, were placed under arrest. On October 1, 1992, both defendants filed motions to suppress the evidence seized pursuant to the search warrant on the grounds that the search warrant was unlawful due to lack of probable cause. The District Court conducted a joint hearing on the motions on October 21,1992.

The District Court issued a memorandum and order on December 11,1992, granting the defendants’ motions to suppress the evidence. In its order, the District Court excised two statements from the search warrant application as being intentionally false or made with a reckless disregard for the truth. The corut then examined the application without the excised statements and found that the application did not provide a substantial basis for concluding that probable cause existed under the totality of the circumstances. Specifically, the court found that the uncorroborated Crimestoppers’ tip had little or no probable cause value and that the search warrant application failed to adequately demonstrate the reliability of B.W. as an informant. The State appeals that order.

The issue on appeal is whether the District Court erred in determining that the application for the search warrant lacked probable cause.

The search warrant application, as excised by the District Court, related the following facts in support of probable cause:

During the first week in June, 1992, Glacier County officials, and specifically your affiant, received a referral from Officer Mike Parker, Indian Investigator for the Bureau of Indian Affairs on the Blackfeet Reservation, that the crimestoppers telephone system at Browning had received an anonymous tip that Dan J. Rinehart, a nonmember, was growing marijuana at his home on U.S. 89 North of Browning in the Montana Retreat Subdivision.
Thereafter, Officer Dusterhoff, your affiant, on the 18th day of June, 1992, received a report from Officer Dale Stone, Assistant Chief of Police of the Columbia Falls Police Department, regarding a sexual abuse investigation and allegations by an alleged victim, BW, Age 13 years, allegedly perpetrated by the above named Defendant Dan Rinehart.

BW known to Officer Stone to have been reliable in a past investigation providing information that led to a conviction, also described in detail a marijuana growing operation operated at the Defendant’s residence in and on the property above described. Specifically, BW described the location in an upstairs room of approximately 15 to 20 5’ tall marijuana plants, books on growing marijuana... and grow lights in said room. She described in detail how Dan Rinehart drys [sic] the marijuana grown in this room for his own use. BW also described the location of the room and how it is concealed behind bunk beds in a false wall upstairs in a small bedroom.... Thereafter, Officer Dusterhoff verified that Tom Ernst owned property in the Montana Retreat Subdivision and that he had moved to California, as described by his informant BW after residing in the property adjacent to Rinehart.

BW indicated she has been in the room where marijuana is cultivated and grown in the fall of 1991 and that she had recently, in May of1992, seen and observed this grow operation as described above.
BW also described how Rinehart transports marijuana to Flathead County to a residence for resale.
Officer Dusterhoff, your affiant, has also observed the residence of Dan Rinehart and it conforms, specifically, to the description given him by BW in that it is a two stoiy structure with ample room in the second story for the grow operation described by BW and observed by BW.

The State does not contest the District Court’s decision to excise two statements from the application. The defendants, however, contend that the District Court should have excised even more statements from the application than it did.

The issue of whether the District Court erred in refusing to excise additional statements from the search warrant application is one which the defendants should have brought up on a cross-appeal. Defendants did not file such a cross-appeal in this matter. Thus, we refuse to consider this issue.

An application for a search warrant must state facts sufficient to show probable cause for issuance of the warrant. Section 46-5-221, MCA. The probable cause requirement for issuance of a search warrant is constitutional, as well as statutory.

The Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana State Constitution both protect a person’s right to be free from unlawful searches and seizures by requiring the existence of probable cause prior to the issuance of a search warrant.

State v. Walston (1989), 236 Mont. 218, 221, 768 P.2d 1387, 1389.

“To address the issue of probable cause for issuance of a warrant, this Court has adopted the ‘totality of the circumstances’ test set forth in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527.” State v. Crowder (1991), 248 Mont. 169, 173, 810 P.2d 299, 302.

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him,, including the “veracity’ and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548; see State v. O’Neill (1984), 208 Mont. 386, 394, 679 P.2d 760, 764. The veracity, reliability and basis of knowledge of informants remain highly relevant factors in determining probable cause under the totality of the circumstances test. State v. Seaman (1989), 236 Mont. 466, 472, 771 P2d 950, 953.

A determination of probable cause does not require facts sufficient to make a prima facie showing of criminal activity. Rather, the issuing magistrate must only determine that there is a probability of criminal activity. O’Neill, 679 P.2d at 764; State v. Sundberg (1988), 235 Mont. 115, 119, 765 P.2d 736, 741.

In dealing with probable cause ..., as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.

Brinegar v. United States (1949), 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890, reh’g. denied 338 U.S. 839, 70 S.Ct. 31, 94 L.Ed. 513; see Sundberg, 765 P.2d at 739-40.

The duty of a reviewing court is simply to ensure that the magistrate or lower court had a substantial basis for concluding that probable cause to issue the search warrant existed. Crowder, 810 P.2d at 302. This function does not constitute a de novo review of the magistrate’s determination. State v. Baldwin (1990), 242 Mont. 176, 183, 789 P.2d 1215, 1220.

An affidavit supporting a search warrant is to be interpreted by the magistrate and examined by the reviewing court in a common sense, realistic fashion and without a grudging or negative attitude that will tend to discourage police officers from seeking warrants. O’Neill, 679 P.2d at 764. Reviewing courts should avoid hypertechnical interpretations of warrant applications and, in doubtful or marginal cases, resolve the issue with the preference for warrants in mind. O’Neill, 679 P.2d at 764.

A magistrate’s determination that probable cause exists should be paid great deference by reviewing courts and every reasonable inference possible should be drawn to support that determination. Sundberg, 765 P.2d at 741; State v. Rydberg (1989), 239 Mont. 70, 73, 778 P.2d 902, 904. If a magistrate issues a search warrant after subjecting the application to the totality of the circumstances test, a reviewing court must presume that decision to be correct. Baldwin, 789 P.2d at 1220; State v. Deskins (1990), 245 Mont. 158, 162, 799 P.2d 1070, 1072.

Probable cause must be determined solely from the information contained within the four comers of the search warrant application. State v. Isom (1982), 196 Mont. 330, 341, 641 P.2d 417, 423; O’Neill, 679 P.2d at 763-64.

This case is unusual in that the judge who concluded the application lacked probable cause is the same judge who originally issued the search warrant. This circumstance, however, should not alter the general law on reviewing determinations of probable cause to issue search warrants as stated above.

The District Court, in determining that the application lacked probable cause, found that the Crimestoppers’ tip had little or no value in the probable cause determination and that B.W.’s reliability as an informant was not sufficiently detailed.

The anonymous Crimestoppers’ tip, by itself, is not adequate to support probable cause without further investigation to verify or corroborate the information contained in the tip. State v. Valley (1992), 252 Mont. 489, 493, 830 P.2d 1255, 1257. This does not mean, however, that the anonymous tip has absolutely no probative value in the probable cause determination. Factors which have little probative value on their own can still provide a basis for a determination of substantial evidence to conclude probable cause existed to issue a search warrant when such factors are considered in combination with other information under the totality of the circumstances test. State v. Holstine (1993), [260 Mont. 310], 860 P.2d 110, 113, 50 St.Rep. 1063, 1065.

Crimestoppers’ tips can provide some corroboration and indicate the veracity of other information provided. Rydberg, 778 P.2d at 904.

We conclude that the Crimestoppers’ tip should be considered under the totality of the circumstances test.

Even without the Crimestoppers’ tip, however, we find that the application still provides a substantial basis to conclude probable cause existed to issue the search warrant.

The District Court held that the search warrant application did not adequately relate how B.W. was known to be a reliable informant. Deputy Dusterhoff, in his affidavit, stated “BW known to Officer Stone to have been reliable in a past investigation providing information that led to a conviction ....” We have previously upheld search warrants where the only information in the application relating to the reliability of the informant was a statement by an officer that the informant had been reliable in the past. See e.g., State v. Campbell (1992), 254 Mont. 425, 838 P.2d 427; State v. Hendrickson (1985), 217 Mont. 1, 701 P.2d 1368; Walston, 768 P.2d 1387; Seaman, 771 P.2d 950. We do not require more.

The defendants also argue that an officer applying for a search warrant must have personal knowledge of an informant’s reliability. We disagree.

An officer may rely on information obtained from other law enforcement officers in an affidavit supporting an application for a search warrant. Seaman, 771 P.2d at 954. In Seaman, we upheld a search warrant where the affidavit recited that the informant had provided reliable information to law enforcement officials in the past. We did not require the officer swearing to the information in the application to be the officer who personally knew of the informant’s reliability. Thus, we conclude that the application adequately addressed the reliability of B.W. as an informant.

The defendants also argue that Deputy Dusterhoff did not conduct sufficient investigation to corroborate the information received from B.W. Corroboration of an informant’s information through other sources is necessary when the information is hearsay or the informant is anonymous. Crowder, 810 P.2d at 302; State v. Hook (1992), 255 Mont. 2, 5, 839 P.2d 1274, 1276. In the instant case, the informant was not anonymous nor was the information hearsay.

B.W.’s information was based on her personal observation of marijuana plants and items for growing marijuana in Rinehart’s home. An informant’s personal observation of criminal activity does not constitute hearsay evidence. It is first-hand evidence. Sundberg, 765 P.2d at 740. In addition,

[w]e have previously held that information of a criminal activity known from observation by a previously rehable informant ... is sufficient to establish the probability of criminal activity without outside investigation and verification of the reported information.

Walston, 768 P.2d at 1390 (emphasis added). This is precisely the situation presented here. B.W. is an informant who has proven rehable in the past and her information was based on personal observation. This combination is enough to make B.W.’s information sufficient to establish probable cause to issue a search warrant.

Finally, defendants contend that the application lacked probable cause because the information it contained was stale. The application for the search warrant states that “BW indicated she has been in the room where marijuana is cultivated and grown in the fall of 1991 and that she had recently, in May of 1992, seen and observed this grow operation as described above.” The Glacier County Sheriff’s Office received the report of the Crimestoppers’ tip in the first week of June 1992, but there is no indication in the application of when the tip was originally telephoned in to the BIA.

“[A] determination of staleness in any given case depends largely on the nature of the property and activity in issue.” Walston, 768 P.2d at 1390.

The issue of staleness cannot be resolved by a mechanical reference to the number of days between the facts relied upon in the affidavit and the time the warrant is issued. Rather, as the court stated in Andresen v. State (Md.App.1975), 24 Md.App. 128, 331 A.2d 78 aff’d sub. nom. Andresen v. Maryland (1976), 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627:
“The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch the clock: the character of the crime (chance encounter in the night or regenerating conspiracy?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc. The observation of a half-smoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning lady has been in; the observation of the burial of a corpse in a cellar may well not be stale three decades later. The hare and the tortoise do not disappear at the same rate of speed.”

State v. Pierre (1984), 208 Mont. 430, 436-37, 678 P.2d 650, 654.

The Crimestoppers’ tip and B.W.’s observations in the fall of 1991 might well be stale when considered individually. When a criminal activity is continuing in nature, however, more time may elapse between the observation of the activity and the application for the search warrant without negating probable cause. Walston, 768 P.2d at 1390. When these two tips are combined with the more current observation by B.W. in May of 1992, only two months before the search warrant issued, the earlier tips carry greater weight in the probable cause determination. Walston, 768 P.2d at 1391; Campbell, 838 P.2d at 429.

Considering the continuous nature of a marijuana growing operation, the information provided in the application for the search warrant was not too stale to prohibit a determination of probable cause under the totality of the circumstances.

The application provided a substantial basis for the probability that criminal activity was occurring on Rinehart’s property. We hold that the District Court erred in determining that the application for the search warrant did not set forth sufficient facts to establish probable cause.

Reversed and remanded.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY, TRIEWEILER, WEBER and DISTRICT JUDGE MIZNER, sittingfor JUSTICE NELSON, concur.


author: JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF PATRICIA L. ZANDER, nka PATRICIA L. SERBA, Petitioner and Respondent, and KENNETH D. ZANDER, Respondent and Appellant.
    No. 93-172.
    Submitted on Briefs August 26, 1993.
    Decided December 2, 1993.
    50 St.Rep. 1522.
    262 Mont. 215.
    864 P.2d 1225.

      For Respondent and Appellant: Arthur D. Agnellino, Missoula.
    For Petitioner and Respondent: Kerry N. Newcomer, Geiszler & Newcomer, Missoula.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Patricia L. Zander, now known as Patricia Serba, petitioned the District Court for the Fourth Judicial District in Missoula County to dissolve her marriage to Kenneth D. Zander. Atrial was held in 1990 and a decree of dissolution was entered on April 28,1992. The court distributed the marital estate, awarded maintenance to Patricia, and ordered Kenneth to pay Patricia’s medical insurance as well as her attorney fees and costs. Two additional orders affecting pension benefits were entered on December 10, 1992. From the decree and subsequent orders, Kenneth appeals.

We affirm in part and reverse in part.

Kenneth raises the following issues on appeal:

1. Did the court err in its valuation and distribution of the marital estate?

2. Did the court err when it awarded Patricia an interest as a 100 percent contingent annuity holder in Kenneth’s pension?

3. Did the court err when it awarded Patricia maintenance for an indefinite period of time?

4. Did the court err when it required Kenneth to pay Patricia’s medical insurance for an indefinite period of time?

5. Did the court abuse its discretion when it required Kenneth to retrieve his personal property from the parties’ residence within a specified period of time?

6. Did the court err when it ordered Kenneth to pay Patricia’s attorney fees and costs?

Patricia and Kenneth were married in 1964. They had four children who had reached adulthood at the time Patricia petitioned the court to dissolve the parties’ marriage on February 4,1987. Kenneth was employed by Stone Container Corporation in Missoula, and had previously worked for Hoemer Waldorf and Champion International. Patricia worked at home and as a part-time cleaning person. In 1987, she began licensed practical nurse training and obtained her license in June 1989. At the time of trial, Patricia was earning approximately $300 per month as a part-time LPN. She was limited to part-time work because of ongoing knee and back problems.

While the dissolution was pending, Patricia began studying for a Registered Nurse degree. She testified that employment as a registered nurse would allow her to be self-sufficient and would give her job options that would not aggravate her existing health problems.

The trial in this matter was held on July 30 and 31,1990, following a failed reconciliation attempt and a long series of temporary restraining orders which were issued to protect Patricia and the parties’ marital property. The court issued its findings of fact and conclusions of law on January 7,1991, but no decree was entered because certain issues had been left unresolved.

Following another series of hearings and interim orders, the court entered a decree of dissolution and supplemental findings and conclusions on April 28,1992.

With respect to the division of the marital estate, the court, after considering the parties’ marital assets, health, respective earning capacities, and educational and monthly living costs, concluded that the following division of property was equitable and not unconscionable: Patricia was given the family home, valued at $54,689.50, and designated personal property, for a total award constituting 60 percent of the marital estate. Kenneth was given personal property and his accumulated pension, which had a present value of $36,582, for a total award constituting 40 percent of the marital estate. Furthermore, the court found that because Patricia would not be able to accumulate an adequate pension for her retirement, Kenneth should be required to designate Patricia as the “irrevocable contingent annuitant for the present value of his pension” unless Patricia predeceased Kenneth. Patricia’s attorney was ordered to prepare a “qualified domestic relations order” directing Kenneth’s pension administrator to implement this portion of the decree.

The court further found that Patricia was not receiving income producing property and, due to her physical disabilities and educational status, was unable to support herself without further education and training. Therefore, it concluded that she was entitled to maintenance “until she completes her RN degree and obtains full-time employment” and ordered Kenneth to pay monthly maintenance in the amount of $1154. This amount included one-half of the monthly mortgage payments due for the home awarded to Patricia, and the remainder was based on Patricia’s monthly expenses while in school. Patricia had started studying for her nursing degree, and estimated that it would take another two to five years to complete her studies. However, she had not made any serious progress toward earning the degree over the two year separation period dining which she had been receiving temporary maintenance in the same amount. The monthly maintenance award constituted approximately half of Kenneth’s monthly income. The decree also included a provision that if Kenneth died before his obligation to pay maintenance was completed, Patricia would have a claim against his estate for the remaining obligation.

The court found that Patricia was unable to provide her own health insurance “given her part-time work which provides no insurance coverage and her status as a student which is expected to continue for the next several years.” The court concluded that, under federal law, employers are able to continue insurance coverage to an employee’s former spouse for at least three years. Therefore, Kenneth was ordered to provide health insurance coverage for Patricia as follows:

Respondent shall provide health, dental and ocular insurance for Petitioner at such benefit levels as the policy that would ordinarily provide through his employment for a period equal to that available from his employer as separate coverage under COBRA, or other elected coverage as is provided under federal law, until Petitioner obtains full time employment as a registered nurse.

Due to the fact that the court had issued several protective orders during the course of the proceedings which had to be enforced by law enforcement officials, the court ordered Kenneth to retrieve any of his personal property which was still in the family home “within 30 days from the date of this Decree or the property award is deemed forfeited.” Kenneth was also permanently enjoined from contacting or communicating with Patricia in any manner.

Finally, the court found that due to Kenneth’s conduct, Patricia had incurred substantial attorney fees which she lacked the financial ability to pay. Therefore, pursuant to § 40-4-110, MCA, it ordered Kenneth to pay Patricia’s attorney fees in the amount of $16,910.84.

As directed in the decree, two qualified domestic relations orders were prepared directing the pension benefits administrators at Stone Container and Champion International to designate Patricia the 100 percent joint survivor annuitant of Kenneth’s pension benefits accrued through July 31, 1990. These orders were signed by the court on July 29,1992, but were not filed until December 10,1992. Notice of entry of judgment was filed on December 11,1992. From the decree of dissolution and subsequent orders, Kenneth appeals.

I.

Did the court err in its valuation and distribution of the marital estate?

The distribution of the marital estate is governed by § 40-4-202, MCA. This statute vests the district court with broad discretion to apportion the marital estate in a manner which is equitable to each party under the circumstances. In re Marriage of Rock (1993), 257 Mont. 476, 850 P.2d 296; In re Marriage of Collett (1981), 190 Mont. 500, 621 P.2d 1093.

The standard of review employed by this Court in marital property division cases is whether the district court’s findings of fact are clearly erroneous. In re Marriage of McLean/Fleury (1993), 257 Mont. 55, 849 P.2d 1012. When there is substantial credible evidence to support the court’s findings and judgment, this Court will not alter the trial court’s decision unless there is an abuse of discretion. In re Marriage ofScoffield (Mont. 1993), 852 P.2d 664, 50 St. Rep. 560.

In this instance, Kenneth contends that the court failed to consider the net worth of the parties prior to dividing the marital property and that it erred by awarding 60 percent of the marital estate, including the family home, which represented the most valuable part of the parties’ marital assets, to Patricia. He also maintains that the court’s valuation of his pension was incorrect because of the beneficiary interest awarded to Patricia, and this resulted in an inequitable distribution of the marital estate.

After reviewing the record, we conclude that the District Court properly considered the statutory criteria found in § 40-4-202(1), MCA, before dividing the marital assets. In its findings and conclusions, the court set forth the parties’ net worth, considered the parties’ earning capacities in terms of respective skills, training, and physical limitations, and evaluated each party’s ability to acquire future assets, such as savings or retirement funds. The issue concerning the value of the pension due to the contingent beneficiary interest awarded to Patricia will be discussed under Issue II. However, pursuant to our decision in In re Marriage of Kis (1982), 196 Mont. 296, 300-01, 639 P.2d 1151, 1153, the court properly considered the present value of the pension as a marital asset to be equitably apportioned between the parties, and its valuation was supported by testimony from a certified public accountant regarding its present value. Furthermore, the record reveals that the court’s valuation of the home and personal property assets were supported by third party appraisals.

Section 40-4-202, MCA, requires that a court achieve equity in distributing marital property, but not necessarily equality. In re Marriage of Fitzmorris (1987), 229 Mont. 96, 745 P.2d 353. Reaching this equitable distribution will at times require the court to engage in discretionary action and these discretionary judgments will not be disturbed on appeal absent an abuse of discretion. Rock, 850 P.2d at 298.

After considering the circumstances of this case, we conclude that there was substantial evidence to support the court’s findings and, based on those findings, the court did not abuse its discretion when it apportioned the assets giving approximately 60 percent of the estate to Patricia and 40 percent to Kenneth. We affirm the court’s distribution of the marital property, subject to the following discussion regarding the award of a beneficiary interest in Kenneth’s pension to Patricia.

II.

Did the court err when it awarded Patricia an interest as a 100 percent contingent annuity holder in Kenneth’s pension?

The marital estate in this instance consisted primarily of two major assets: the family home, and Kenneth’s pension. The court determined an equitable distribution would be achieved by awarding Patricia the family home and Kenneth his pension. However, because the court found that Patricia was not likely to be able to accumulate an adequate pension prior to her retirement, it awarded her a 100 percent contingent annuity interest in the present value of the pension in the event that Kenneth predeceased her.

Kenneth contends that Patricia’s qualified interest in his share of the estate makes it non-assignable as a property right, and therefore, its value is diminished. He maintains that this resulted in an inequitable property distribution because the pension had. less value than assigned by the court.

Patricia claims that Kenneth failed to submit evidence that the contingency diminished the value of the pension and the court, therefore, was not required to consider this possibility. Furthermore, she claims that it was within the court’s discretion to designate her as the alternate payee and this contingency has only minimum impact on Kenneth because she will only receive benefits if he predeceases her.

The court’s property distribution was based on the relative values of the family home and the pension, which were the parties’two major assets. By designating Patricia as the irrevocable recipient of the survivorship benefits, its value to Kenneth was diminished because part of the value of a pension is the ability to provide for others through survivorship benefits. Kenneth is not able to designate his children or grandchildren, or a subsequent spouse, as recipients of his pension benefits. Consequently, the value of the pension to Kenneth, should he predecease Patricia, is illusory and this has the effect of eroding the basis of the court’s equitable distribution of the estate. If Kenneth does predecease Patricia prior to the time he retires, he will essentially have received nothing from the marital estate. Since our conclusion that the estate was equitably divided rests on the full allocation of Kenneth’s pension benefits to him, we conclude that to then erode the value of those benefits in any way would be inequitable.

Because the pension was the only major asset awarded to Kenneth, we conclude that the restriction placed on Kenneth’s pension results in an inequitable distribution of the estate and that this constitutes an abuse of discretion by the court. Therefore, to insure that the court’s distribution remains equitable, we reverse that part of the District Court’s order which awarded Patricia the contingent beneficiary interest in Kenneth’s pension.

III.

Did the court err when it awarded Patricia maintenance for an indefinite period of time?

This Court will not reverse a district court’s award of maintenance unless the findings of fact are clearly erroneous. In re Marriage of Eschenbacher (1992), 253 Mont. 139, 831 P.2d 1353. An award of maintenance is governed by § 40-4-203, MCA, and is dependent upon a finding by the court that Patricia lacks sufficient property to provide for her reasonable needs and is unable to support herself through appropriate employment. In re Marriage of Dunn (1991), 248 Mont. 95, 98, 809 P.2d 571, 573.

Kenneth challenges the court’s award of maintenance on two bases. First, he contends that the court failed to consider his ability to maintain his own standard of living when it awarded Patricia essentially half of his income in the form of maintenance. He notes that § 40-4-203(2)(f), MCA, requires the court to consider “the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.” It is his contention that the court failed to consider his health, instability of contract negotiations at Stone Container, and his ability to maintain his own living standards when it awarded maintenance to Patricia in the amount of $1154 per month.

Second, he contends that the court erred when it ordered payment of maintenance until Patricia “completes her RN degree and obtains full time employment” without including a specific time limit on his maintenance obligation. Although Patricia testified that it would take between two and five years to complete her RN degree, Kenneth points out that the maintenance obligation, as decreed, could continue indefinitely if Patricia chooses not to complete her studies. Kenneth notes that during the time period between the parties’ separation and trial, while he was paying maintenance in an amount which would allow Patricia to attend school, she made very little progress toward earning her degree.

A review of the record demonstrates that substantial evidence exists to support the court’s finding that Patricia does not have sufficient income to pay her monthly expenses and that she is unable to support herself through appropriate employment. There is also sufficient evidence to show that the amount awarded will allow Patricia to meet her needs until she can become self-sufficient through appropriate employment, and that the court did consider Kenneth’s income and whether he would be able to meet his own needs while paying the maintenance Patricia requires. We conclude that the court’s findings regarding Patricia’s eligibility for maintenance, and the amount awarded, are not clearly erroneous.

With respect to Kenneth’s second argument, § 40-4-203(2)(b), MCA, requires the court, when determining the amount and duration of maintenance, to consider the “time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment.” It is clear from the decree that the intent of the court when it awarded maintenance was to provide support for Patricia during the time necessary to complete her nursing degree. There was also testimony from Patricia that she expected this to take from two to five years. However, the decree contains no time limitation on the award. Furthermore, there was evidence that Patricia had made very little progress toward earning her degree during the period that she was receiving temporary maintenance.

We agree with Kenneth’s assertion that the language of the decree could result in a maintenance obligation for an indefinite period of time. This Court has favored providing the person obligated to pay maintenance as much certainty as possible regarding the amount and duration of the obligation. In re Marriage of Ernst (1990), 243 Mont. 114, 793 P.2d 777. In this case, because there was evidence regarding the length of time it would take Patricia to complete her degree, we conclude that the court erred by not putting a time limitation on the maintenance award.

Therefore, we vacate the court’s award of maintenance for an indefinite period and remand for a hearing to determine a reasonable limitation on the duration of the maintenance award.

IV.

Did the court err when it required Kenneth to pay Patricia’s medical insurance for an indefinite period of time?

Kenneth contends that the court’s order regarding medical insurance impermissibly requires him to provide coverage for Patricia beyond the time period provided for under federal law.

The federal statute cited by Kenneth, 5 U.S.C.A. § 8905a (1993), provides that a former spouse is entitled to continue health coverage under the other spouse’s employment plan for a period not to exceed 36 months after the dissolution. However, nothing in that statute prohibits a court from designating who is required to pay for such coverage. The dissolution decree provides that if Patricia has not obtained appropriate employment after 36 months have elapsed, Kenneth must provide alternate coverage until she “obtains full time employment as a registered nurse.” Kenneth cites to no authority which prohibits such an order.

However, the requirement that Kenneth pay Patricia’s medical insurance is another form of maintenance. Therefore, for the same reasons stated above, we conclude that there should likewise be a time limitation on Kenneth’s obligation to provide health insurance for Patricia.

We affirm this provision in the decree to the extent that Kenneth is prohibited from interfering with Patricia’s rights to continued coverage under Kenneth’s insurance plan for a period of 36 months after the dissolution and that he can be required to pay for Patricia’s coverage during the time that she is entitled to maintenance. However, we remand for a hearing to determine the duration of Kenneth’s obligation consistent with the duration of his obligation to pay maintenance.

V.

Did the court abuse its discretion when it required Kenneth to retrieve his personal property from the parties’ residence within a specified period of time?

The dissolution decree required Kenneth to retrieve the personal property awarded to him from the family home within 30 days from the date of the decree. This transfer was to take place under the supervision of the Missoula County Sheriff, and if it did not occur within the specified time frame, the property was deemed forfeited.

Kenneth contends that the court abused its discretion when it imposed this kind of a limitation because it was punitive in nature and there is no statutory authority for this kind of restriction. Furthermore, he claims he did not retrieve the property within 30 days from entry of the decree because he was waiting for notice of entry of judgment, which was not forwarded to him until almost eight months later. He contends the 30 day period should have been tolled until that time.

A district court has broad discretion in devising methods to accomplish an equitable distribution of the marital property. Kis, 639 P.2d at 1155; In re Marriage of Johnsrud (1977), 181 Mont. 544, 572 P.2d 902. Here, the record demonstrates that the court had issued several temporaiy restraining orders during the course of the proceedings and a restraining order was eventually made a permanent part of the decree. Also, Kenneth had refused to comply with several of the pre- and post-trial orders which had necessitated the issuance of enforcement orders. The record justifies the District Court’s concern for a quick, supervised exchange of property. We find no abuse of discretion in the court’s decision to impose a specific time and manner for the property distribution to occur.

We also find no merit in Kenneth’s argument that the 30 day time limit should have been tolled until he received notice of entry of judgment. Pursuant to Rule 77(d), M.R.Civ.P., the filing of a notice of entry of judgment by the prevailing party in an action starts the time period for filing a notice of appeal. However, Kenneth cites no authority for his contention that the provisions of a valid judgment or decree are “tolled” until the time for appeal starts. The decree entered on April 28, 1992, stated that he had 30 days from the date of the decree to retrieve his property. Kenneth does not allege that he was unaware of this provision or that he did not receive a copy of the decree. The fact that notice of entry of judgment was not filed until several months later does not excuse his failure to comply with the provisions of the decree.

VI.

Did the court err when it ordered Kenneth to pay Patricia’s attorney fees and costs?

Section 40-4-110, MCA, provides that a court may, after “considering the financial resources of both parties,” order a party to pay reasonable costs and attorney fees to the other party in any dissolution or custody proceeding. This Corut has held that an award of attorney fees under this statute must be based on necessity, must be reasonable, and must be based on competent evidence. In re Marriage of Barnard (1990), 241 Mont. 147, 785 P.2d 1387. When reviewing the discretion vested in the district court under this statute, this Court will not disturb a district court’s findings on appeal if there is substantial evidence to support those findings. In re Marriage of Hall (1990), 244 Mont. 428, 798 P.2d 117.

In this instance, the court ordered Kenneth to pay Patricia’s attorney fees and costs totalling $16,910.84. This was based on its finding that due to Kenneth’s conduct, Patricia had incurred substantial attorney fees and that she lacked the financial ability to pay this amount. Evidence was presented which documented the reasonableness of the fees she incurred and that she lacks the financial ability to pay these fees. However, the statute specifically requires the court to consider the financial resources of both parties. When neither party is better able to pay attorney fees than the other, it is proper to hold each responsible for his or her own attorney fees. In re Marriage of Hall (1987), 228 Mont. 36, 740 P.2d 684.

Patricia urges this Court to consider Kenneth’s anticipated disposable income level for 1993 as established in a hearing regarding a petition for bankruptcy. However, on review, we must consider whether the corut’s findings regarding both parties’ financial resources are supported by the evidence in this case.

InFindingXXV of the January 1991 findings and conclusions, the court found that, after maintenance and payment of one-half of the mortgage payment, Kenneth “is left with approximately $1,900 per month for living expenses.” However, in Finding XXVII, the court determined that Patricia has a monthly income after taxes of $1,587.06, while Kenneth’s income after taxes and payments is $1,123.75. It concluded that “it is evident that [Patricia’s] monthly income is substantially higher than that of [Kenneth’s].” Furthermore, the findings indicate Patricia’s maintenance award constitutes approximately half of Kenneth’s monthly income. Finally, in Conclusion IX, the court stated the following:

Given the Finding that Petitioner is financially unable to pay her attorney fees and costs and Respondent’s financial ability to do so, he should be Ordered pursuant to Section 40-4-110, MCA, to pay Petitioner’s fees and costs in an amount to be determined at a hearing....

This conclusion is not supported by the evidence as demonstrated by the findings set forth by the court. The court found that Patricia has a higher monthly income than Kenneth, but then determined that he was more financially able to pay her attorney fees. Because the evidence does not support this conclusion, we hold that the court erred in awarding Patricia attorney fees.

We recognize that part of the court’s decision was based on the fact that Kenneth was largely responsible for the amount of fees incurred by the parties. In In re Marriage of Syljuberget (1988), 234 Mont. 178, 763 P.2d 323, we affirmed an award of attorney fees when the majority of fees were similarly due solely to one party’s lack of cooperation. However, in that case, there was evidence to show that the wife was without funds to pay those fees and that the husband did have sufficient resources. Here, the court’s findings do not support a similar conclusion.

The award to Patricia of an interest as a 100 percent contingent annuity holder in Kenneth’s pension is reversed. We otherwise affirm the court’s distribution of the marital estate, including the provision which required that Kenneth retrieve his property within 30 days.

The award of maintenance, and the provision requiring Kenneth to pay Patricia’s health insurance, are affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

The award of attorney fees and costs to Patricia is reversed.

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