author: CHIEF JUSTICE TURNAGE JUSTICE GRAY

text:
    IN RE THE MARRIAGE OF MARILYN ANNE OLSEN, Petitioner and Respondent, and RAYMOND CHARLES OLSEN, Respondent and Appellant.
    No. 92-116.
    Submitted on Briefs August 6, 1992.
    Decided March 5, 1993.
    50 St.Rep. 234.
    257 Mont. 208.
    848 P.2d 1026.

      For Respondent and Appellant: Patrick D. Sherlock, Sherlock & Nardi, Kalispell.
    For Petitioner and Respondent: Katherine R. Curtis, Kaplan & Curtis, Columbia Falls.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Raymond Olsen (Raymond) appeals the findings of fact, conclusions of law, and order entered in this dissolution of marriage by the District Court for the Eleventh Judicial District, Flathead County. We affirm the District Court.

Raymond raises five issues for our consideration. We rephrase those issues as:

1. Did the District Court require Raymond to pay unreasonable child support?

2. Was the District Court correct in denying Raymond’s motion for retroactive modification of a temporary child support, maintenance, and health insurance order?

3. Did the District Court err in requiring Raymond to pay medical insurance and part of the uncovered future medical expenses of his children?

4. Was the District Court’s award of maintenance unreasonable?

5. Was the District Court’s apportionment of the parties’ assets equitable?

Raymond and Marilyn Olsen (Marilyn) were married on June 27, 1971, in Bigfork, Montana. Two children were born to the parties: a daughter, born July 19,1973; and a son, born July 10,1975. Raymond and Marilyn separated in February 1990 after Raymond was arrested for sexual assault of their daughter. Raymond plead guilty to one count of sexual assault and was sentenced to sixteen years in prison with six years suspended. Raymond was incarcerated in the Montana State Prison on October 25, 1990.

Through Raymond’s employment as a truck driver for the Columbia Falls Alumimnn Company, and Marilyn’s efforts as a homemaker, the parties enjoyed a decent standard of living during their marriage. Their home in Columbia Falls had a market value of $63,500 with no encumbrances. They had accumulated $43,882.33 in a joint money market account at the time of separation. Additionally, they had various items of personal property and liquid assets for a marital estate totaling $156,704. Raymond’s employment also provided medical insurance for the family.

After their separation, Marilyn moved the District Court for temporary child support and maintenance. Following a hearing, the District Court ordered Raymond to pay child support of $401.50 per month per child. Raymond was also ordered to pay maintenance in the amount of $200 per month. The order allowed Marilyn to make up any deficiencies in the support and maintenance payments from Raymond’s share of the money market account. In addition, approximately one year after their separation, Marilyn obtained employment as a bartender/cocktail waitress. Her net earnings from this job were approximately $1000 per month.

In December 1991, after a bench trial, the District Court entered its findings of fact, conclusions of law and decree of dissolution of marriage. The District Court divided the total marital estate, valued at $156,704, equally between the parties. However, Marilyn actually received $124,341 of the marital estate. The District Court deducted from Raymond’s half of the estate, and added to Marilyn’s share, Raymond’s obligation for child support, maintenance, medical insurance, uncovered future medical expenses and incurred liabilities, for a total addition of $43,289. The District Court ordered the deductions in lieu of cash payments because Raymond would be earning no income while incarcerated. Raymond appeals the decision of the District Court.

I

Did the District Court require Raymond to pay unreasonable child support?

In this appeal, we again address what effect loss of income due to incarceration should have upon a child support obligation. We first addressed this issue in Mooney v. Brennan (1993), [257 Mont. 197], 848 P.2d 1020, 50 St.Rep 0229, (Cause No. 92-089, decided March 5, 1993). Mooney involved modification of a child support order which was based upon pre-incarceration income. In the instant case, we decide a similar, although not exactly parallel, issue. Here, we address what effect incarceration should have upon an original child support order arising from a dissolution of marriage. In addition, we determine what effect an inability to earn income due to incarceration for a voluntary criminal act should have upon maintenance and other family support obligations arising from a dissolution of marriage.

In Mooney, this Court determined that incarceration does not constitute a change in circumstances so substantial and continuing as to make the terms of a child support order based upon pre-incarceration income unconscionable. Mooney, [257 Mont. 197, 848 P.2d] at 1023. We held the District Court was incorrect as a matter of law in ruling that incarceration met the requirements of § 40-4-208(2)(b)(i), MCA, and justified a modification of child support payments because of a resultant loss of income. Mooney, [257 Mont. 197, 848 P.2d] at 1023.

In reviewing the District Court’s findings of fact, the standard of review to be applied is whether the findings are clearly erroneous. In re the Marriage of Eschenbacher (1992), 253 Mont. 139, 142, 831 P.2d 1353, 1355. Our standard of review as to the District Court’s conclusions of law is “whether the tribunal’s interpretation of the law is correct.” Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

Raymond contends the District Court erred in its determination of child support because it failed to “annualize” his income for the immediate two-year period preceding the dissolution of marriage, the last of which he was incarcerated and earned no income. He argues that had the District Court done so, his income over this time frame would have been $18,828, and, therefore, his child support obligation would have been lower. However, Raymond misinterprets the term “annualized income” and merely averages his income over a two-year period.

When an order concerning child support is issued, part of the criteria used in determining the child support obligation requires the district court to determine the support obligation

by applying... the uniform child support guidelines adopted by the department of social and rehabilitation services pursuant to 40-5-209 ....

Section 40-4-204(3)(a), MCA. In referring to annualized income, the Child Support Guidelines state:

“Annualized income” refers to gross income and deductions from gross income used to derive a figure for net resources available for child support....

Section 46.30.1513(1)(e), ARM (1990). Income should be annualized to accurately reflect a parent’s income producing abilities. Section 46.30.1513(1)(e), ARM (1990).

Raymond supports his argument that his income for the two years immediately preceding his dissolution should have been “annualized” by relying upon the District Court Rules on Child Support. Under these rules it was recommended that:

All income should be annualized and copies of the last two years’ tax returns should accompany financial statements as well as current wage stubs.

District Court Rules on Child Support (1987), 227 Mont. 1, 5. Raymond argues that, had the District Court done this, his child support obligation would have been based upon a net income of $18,828. This argument fails for three reasons.

First, the very reason it is recommended by the District Court Rules on Child Support that two years of annualized income be examined is:

Without such examination a temporary period of present unemployment or underemployment may indicate an unwarranted low amount of income available for support.

District Court Rules on Child Support (1987), 227 Mont. 1, 5 (emphasis added).

Second, under § 40-4-204(3)(a), MCA, which was in effect at the time of this dissolution of marriage, the District Court is required to determine the child support obligation by, inter alia, applying the standards in the Uniform Child Support Guidelines promulgated by the Department of Social and Rehabilitation Services, § 46.30.1501, ARM (1990), et.seq., and not the District Court Rules on Child Support.

Third, where a parent is voluntarily unemployed or underemployed, the District Court may impute income “based upon the parent’s ability or capacity to earn net income.” Section 46.30.1513(1)(b), ARM (1990) (emphasis added).

The District Court found that Raymond’s gross income for 1989, his last full year of employment, was $40,659. Raymond’s gross income for 1990, through October, was $42,951. Raymond was ordered to pay a total of $702 per month in child support through May 1992, when his daughter completed high school. Thereafter, Raymond was ordered to pay a total of $452 per month in child support through July 1993, when his son turns eighteen.

In using the $42,951 figure for imputing income upon which child support was based, the District Court reasoned that Raymond’s lack of employment was the result of a voluntary criminal act. The District Court imputed income to Raymond and calculated his child support obligation “as though he had continued in his pre-incarceration employment.” Raymond contends that while his criminal conduct was voluntary, the resulting unemployment arising from his incarceration was involuntary and unforeseeable under the circumstances. Therefore, Raymond argues, the District Court failed to impute income based upon one year of involuntary unemployment as well as his final year of employment before he was incarcerated. We do not agree.

In Mooney, we held that a criminal should not be offered a reprieve from their child support obligations when we do not do the same for one who becomes voluntarily unemployed. Mooney, [257 Mont. 197, 848 P.2d] at 1022-23. Furthermore, we held it was the public policy of this state that the “provisions of Title 40, Chapter 4 are to be liberally construed to promote the underlying purposes of the chapter.” Mooney, [257 Mont. 197, 848 P.2d] at 1023. One such purpose requires parents to provide support for their children. Section 40-4-101(4), MCA. We now extend the reasoning in Mooney to the case at bar. We hold under the facts of this case, the District Court’s decision to impute income to Raymond for purposes of child support based upon his pre-incarceration income was not clearly erroneous nor incorrect as a matter of law.

II

Was the District Court correct in denying Raymond’s motion for retroactive modification of a temporary child support, maintenance, and health insurance order?

Raymond contends the District Court erred as a matter of law in denying his motion for retroactive modification of the temporary order entered on October 18, 1990. He argues that under § 40-4-208(2)(b)(i), MCA, retroactive modification was warranted because his unemployment due to incarceration constitutes a change in “circumstances so substantial and continuing as to make the terms [of the temporary order] unconscionable.” Section 40-4-208(2)(b)(i), MCA. We do not agree, and hold the District Court was correct in denying Raymond’s motion for retroactive modification of the temporary child support, maintenance, and health insurance order.

The District Court concluded that Raymond’s unemployment due to incarceration did not constitute a change in circumstances so substantial and continuing as to make the terms of the temporary order unconscionable. Therefore, a modification under § 40-4-208(2)(b)(i), MCA, was not appropriate. We hold this conclusion is correct as a matter of law, and in line with our holding in Mooney.

III

Did the District Court err in requiring Raymond to pay medical insurance and part of the uncovered future medical expenses of his children?

Raymond next contends the District Court erred in requiring that he pay the medical insurance premiums and a disproportionate share of uncovered future medical expenses for the parties’ children. As to the medical insurance, the temporary order required Raymond to provide medical coverage for his children. In its final order, the District Court ordered Raymond to continue to provide medical insurance for his children.

Raymond contends health insurance is not mandatory and he should not be required to bear the full brunt of medical insurance because he is no longer employed. In addition, he argues that Marilyn is working and has funds with which to purchase medical insurance.

Under § 40-4-204(4)(b), MCA:

(4) Each district court judgment, decree, or order establishing a final child support obligation under this title ... must include a provision addressing health insurance coverage in the following cases:
(b) In the event that health insurance required in a child support judgement, decree, or order becomes unavailable to the party who is to provide it, through loss or change of employment or otherwise, that party must, in the absence of an agreement to the contrary, obtain comparable insurance or request that the court modify the requirement. [Emphasis added.]

At the time the temporary order was entered, Raymond was still employed and had insurance coverage for his children through his employer. When he became incarcerated and unemployed, Raymond lost his medical insurance benefits. After the insurance became unavailable to him, § 40-4-204(4)(b), MCA, required that he obtain comparable insurance. Raymond was incarcerated and had no employment with which to replace the insurance. However, he did have assets in the marital estate as a means to obtain comparable insurance.

The District Court found that $2,775 would be required to cover the cost of medical insurance for the parties’ children until they were emancipated. Because Raymond could not purchase insurance, the District Court ordered $2,775 to be deducted from Raymond’s share of the marital estate. The District Court reasoned that deducting the insurance obligation was the only reasonable means to insure that Raymond fulfilled his obligation to provide medical insurance. We hold the District Court did not err in requiring Raymond to provide medical insurance.

Raymond also contends the District Court erred in requiring him to pay a disproportionate share of expected uncovered future medical expenses of the parties’ children. He argues the future medical expenses are speculative and the parties should split any expenses fifty/fifty rather than seventy-five/twenty-five.

The District Court found that the children had significant medical problems which would necessitate attention and treatment in the future. The District Court also found the expected cost of such expenses, not covered by insurance, to be $1700. The District Court deducted $1350, or 75 percent, of the expected cost from Raymond’s share of the marital estate. The District Court derived the 75 percent figure by comparing Raymond’s net available resources to the parties’ net available resources as a whole. As we have held the District Court did not err in determining the amount of income available for child support, we too hold it was not clearly erroneous for the District Court to find that Raymond was responsible for 75 percent of expected medical expenses not covered by health insurance.

IV

Was the District Court’s award of maintenance unreasonable?

An award of maintenance may be proper after the District Court has equitably divided the marital estate pursuant to § 40-4-202, MCA, and has properly applied the criteria of § 40-4-203, MCA. Eschenbacher, 831 P.2d at 1355. In the case at bar, the District Court divided the $156,704 marital estate in the amount of $78,352 to each party. Raymond does not contend this division was inequitable. Rather, he contends the District Court should not have awarded Marilyn more than $100 per month in maintenance because she has sufficient employment or assets with which to support herself. We do not agree with this contention.

Under § 40-4-203, MCA, the District Court may grant a maintenance order only if it finds the spouse seeking maintenance:

(a) lacks sufficient property to provide for his reasonable needs; and

(b) is unable to support himself through appropriate employment.... Section 40-4-203(l)(a) and (b), MCA. In addition,

(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant facts including:
(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(c) the standard of living established during the marriage;
(d) the duration of the marriage;
(e) the age and the physical and emotional condition of the spouse seeking maintenance; and
(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

Section 40-4-203(2)(a) through (f), MCA.

The District Court ordered Raymond to pay $200 per month in maintenance through July 1993, when the youngest child turns eighteen. Thereafter, the District Court ordered Raymond to pay $500 per month in maintenance through August 1995. The total maintenance obligation was $16,500.

Raymond argues that because Marilyn was awarded the house, the silver dollar collection, a 1984 automobile, and the parties’ money market account, she had sufficient property to provide for her reasonable needs. However, for property to be “sufficient property” under § 40-4-203(1)(a), MCA, the property must be income-producing rather than income-consuming. In re the Marriage of Van Atta (1992), 252 Mont. 310, 313, 829 P.2d 3, 5. Although it is arguable that the house and the silver dollar collection will produce income due to appreciation in value, they would have to be sold to realize any income production. These items cannot be considered sufficient property because they will not provide income sufficient for Marilyn’s reasonable present needs. Van Atta, 829 P.2d at 5-6. Furthermore, although the money market account will earn interest, Marilyn will have to deplete the funds at a greater rate than interest accrues to meet the needs of herself and the parties’ children. After a thorough review of the record, we hold the District Court did not clearly err in finding the property awarded to Marilyn was not sufficient property to provide for her reasonable needs.

Raymond also argues Marilyn has appropriate employment from which she can provide for her reasonable needs. During the marriage, Marilyn enjoyed a reasonably decent standard of living. After the parties separated, because she had no job skills or education greater than a high school diploma, Marilyn took a job as a bartender/cocktail waitress and earned approximately $1000 per month net, with no benefits. The District Court found the reasonable monthly expenses of Marilyn and the two children to be $1600. Furthermore, the District Court found Marilyn was barely able to support herself through her employment much less achieve the standard of living enjoyed during the marriage.

“ ‘Appropriate employment’ under § 40-4-203(1)(b), MCA, ‘must be determined with relation to the standard of living achieved by the parties during the marriage.’ ” Van Atta, 829 P.2d at 6 (citation omitted). We hold the District Court did not err in its finding that Marilyn could not properly support herself in relation to the standard of living achieved during the marriage. The requirements of § 40-4-203(1), MCA, have been satisfied.

Finally, Raymond contends the District Court erred in awarding increased maintenance payments so that Marilyn could seek further education after the youngest child turns eighteen. The District Court found it would take Marilyn two years to acquire sufficient education and training in order that she might find appropriate employment. The District Court also found that Marilyn would not be able to maintain full-time employment while pursuing this education. Therefore, Raymond was ordered to pay increased maintenance in the amount of $500 per month beginning in August 1993. The increased payments were to continue for two years. Because we have held Marilyn did not have appropriate employment under § 40-4-203(1), MCA, we also hold the District Court did not err in awarding Marilyn increased maintenance.

V

Was the District Court’s apportionment of the parties’ assets equitable?

In his final assignment of error, Raymond claims that if the District Court erred in determining his obligation of child support, maintenance, medical insurance, and future medical expenses, those amounts should not be deducted from his share of the property settlement. As we have held the District Court did not err in its determination of the amount of these obligations, we do not address this issue in detail. In passing, we do note that it was within the province of the District Court to deduct these amounts from Raymond’s half of the marital estate after finding that this was the only means with which the obligations would be met. See e.g.: In re the Marriage of Crabtree (1982), 200 Mont. 178, 651 P.2d 29; In re the Marriage of Karr (1981), 192 Mont. 388, 628 P.2d 267.

The judgment of the District Court is affirmed.

JUSTICES HUNT, McDONOUGH and WEBER concur.

JUSTICE GRAY

specially concurring.

I concur in the opinion of the majority on issues 3, 4 and 5. I specially concur in that opinion on issues 1 and 2, notwithstanding my disagreement with the majority’s approach and rationale.

As indicated by my joining of Justice Trieweiler’s dissent in Mooney, it is my view that black and white rules of law with regarding to child support and maintenance owed by an incarcerated former spouse are neither necessary nor wise. Nor does the case before us fall within the facts of Mooney. Because respondent in this case has sufficient assets to meet appropriate child support and maintenance obligations, I would distinguish this case from Mooney and affirm the District Court on the basis that its findings are not clearly erroneous. On the record before us, I cannot say that the District Court erred in determining that respondent’s unemployment due to incarceration did not constitute a change in circumstances so substantial and continuing as to make the terms of the temporary order unconscionable.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    IN RE THE MARRIAGE OF JEFFERY P. WELCH, Petitioner and Respondent, and CAROLYN L. PHILLIPS, f/k/a CAROLYN WELCH, Respondent and Appellant.
    No. 92-039.
    Submitted on Briefs August 27, 1992.
    Rehearing Denied April 1, 1993.
    Decided March 9, 1993.
    50 St.Rep. 240.
    257 Mont. 222.
    848 P.2d 500.

      For Respondent and Appellant: John L. Hollow, Helena.
    For Petitioner and Respondent: Gregory W. Duncan, Harrison, Loendorf & Poston, Helena.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

On October 10, 1991, appellant Carolyn L. Phillips, formerly known as Carolyn Welch, was named primary residential custodian of the parties’ three children by order of the First Judicial District Court, Lewis and Clark County. However, the court denied Carolyn’s motion to amend the pleadings to conform to the evidence, and in a second order issued on December 30, 1991, denied Carolyn’s request for attorney fees. From these judgments, Carolyn appeals. We affirm.

The following issues are before this Court:

1. Did the District Court abuse its discretion when it denied Carolyn’s motion to amend the pleadings to conform to the evidence?

2. Did the District Court err when it did not award child support after modifying the custody order?

3. Did the District Court abuse its discretion when it denied Carolyn’s request for attorney fees?

When Carolyn and Jeffery were divorced on December 15, 1989, after 19 years of marriage, the court approved a property settlement agreement which the parties had both signed. The agreement provided that Jeffery was to receive in excess of $100,000 in marital assets and Carolyn was to receive assets worth about $2000. The dissolution decree granted the parties joint custody of their three children — Errin, born April 16,1975; Emily, born December 4,1977; and Mary Ellen (Elleny), born June 22, 1981. The residency of the children was to be shared as equally as possible and neither party was required to pay child support.

Shortly after the dissolution, when Carolyn remarried and moved to Georgia, Jeffery petitioned for permanent custody of all three children. On July 30, 1990, Jeffery and Carolyn entered into a negotiated agreement which gave Jeffery custody of the children during the school year and Carolyn custody during the summers and school vacations. The agreement provided for no child support payments, but stipulated that Carolyn would pay all transportation costs for the children to travel to and from Georgia during the times they would be with their mother.

Pursuant to this agreement, the children spent the remainder of the summer with Carolyn, but at the end of the summer she retained two of the girls in Georgia and repeatedly refused to return them to Jeffery. Finally, on September 13, 1990, Carolyn was ordered to return the children to Montana and to pay a fine of $500 a day. She was also sentenced to, and served, three days in jail. Thereafter, Jeffery petitioned the court for an order to show cause why Carolyn’s future visitation should not be restricted and sought payment of child support from Carolyn. After several hearings, continuances, and substitutions of counsel, the matter went unresolved.

On April 5, 1991, Carolyn petitioned to set aside the 1990 custody agreement on the basis of duress, fraud, undue influence, and menace. Although Carolyn sought permanent custody of all three children, no request was made for child support in the pleadings. Hearings on this motion were held on May 23, 24, 28, 29, and August 19, 20, and 21, 1991. Immediately after the hearings were completed, Carolyn filed a motion to amend the pleadings to conform to the evidence, and sought to have Jeffery held in contempt and to have the original dissolution decree set aside on the grounds that the property settlement agreement, on which the decree was based, was unconscionable.

During this same general time period, several events relating to the children transpired. The oldest daughter, Errin, was experiencing serious emotional difficulties in Helena which experts attributed partly to the people she was associating with, but also to problems stemming from the divorce. After an attempted suicide, she was hospitalized in a psychiatric care center in Helena for several weeks and thereafter, although technically in the custody of Jeffery, went to live with an aunt and uncle in Arkansas and began attending school there. Under the terms of the custody agreement, Errin went to visit her mother in Georgia during spring break in 1991. In direct violation of court orders, Carolyn has kept Errin in Georgia since that time and has never returned her to Jeffery. Apparently, when Jeffery realized Carolyn would not return Errin to Arkansas, he delayed sending the other girls to Georgia for the summer. In an order issued on June 7, 1991, Jeffery was required to send Emily and Elleny to Georgia, but the order specified that they were to be returned to Montana no later than August 15, 1991. Carolyn again violated this court order, and the two girls did not return to Montana until later in August.

On October 10, 1991, the District Court issued its findings of fact and conclusions of law in response to Carolyn’s motions, and judgment was entered on November 20,1991. The District Court modified the custody order and awarded residential custody to Carolyn during the school year, and to Jeffery during summers and school vacations. This decision was reached after the court considered the ages and wishes of the children, the evidence of each party’s performance as a parent, and the importance of not separating the children. The court found that Jeffery was a caring and capable parent who provided a healthy and clean environment, but that Carolyn, when she was not manipulating the children, was a good mother and was more apt to be involved in the children’s activities on a regular basis.

Prior to the change of custody, however, Carolyn was required to pay $3000 to the court for fines, Jeffery’s attorney fees of $3040, and another $1500 as attorney fees for the children. The court further ordered that if Carolyn failed to return any of the children to Jeffery at the established vacation times, or during the summer, sole custody would immediately revert to Jeffery. Jeffery was ordered to assume all transportation costs to and from Montana in lieu of child support.

The court also denied Carolyn’s motion to amend the pleadings to conform to the evidence, and therefore, did not set aside the 1989 separation agreement. Although the motion to set aside the July 30, 1990, custody agreement was now irrelevant, the court stated that it found no credible evidence to show that Carolyn did not enter into the agreement voluntarily while represented by an attorney.

Finally, the court specifically stated that it was retaining jurisdiction over the matter to insure that Carolyn attempted no further manipulations which would interfere with Jeffery’s relationship with his children, and to insure that the visitation schedule was complied with.

In response to the court’s denial of her motion to amend the pleadings to conform to the evidence and to set aside the separation agreement as unconscionable, Carolyn filed a notice of appeal on December 18, 1991. On appeal, Carolyn also raised the issue of the court’s failure to make an award of child support after granting her primary residential custody. Carolyn had previously filed a bill of costs on October 17,1991, in which she argued that she was entitled to her attorney fees because she had prevailed on the custody issue. This request was denied in a December 30, 1991, order, which required each party to bear his and her own attorney fees. From this, and the October 10, 1991, orders, Carolyn appeals.

I.

Did the District Court abuse its discretion when it denied Carolyn’s motion to amend the pleadings to conform to the evidence?

Carolyn contends the court erred when it denied her motion to amend the pleadings to conform to the evidence in regard to the original property distribution agreement because the original agreement should have been declared unconscionable as a matter of law and was induced by fraud. In its order, the court concluded that the issue of whether the separation agreement was invalid should have been addressed prior to the hearings to allow all parties an opportunity to submit evidence, and that it would be unfair to permit Carolyn to raise such serious allegations at this point.

Whether a party is permitted to amend the pleadings to conform to the evidence pursuant to rule 15(b), M.R.Civ.P., is within the discretion of the trial court and this Court will not disturb that decision absent an abuse of discretion. Glacier National Bank v. Challinor (1992), 253 Mont. 412, 833 P.2d 1046; Keaster v. Bozik (1981), 191 Mont. 293, 623 P.2d 1376. In this case, after considering the fact that Carolyn could have raised these issues and submitted evidence prior to the hearings, and in light of certain representations that were made to the court during the hearings, we hold that the court did not abuse its discretion when it denied Carolyn’s motion.

The record reveals that, during the hearings, when Carolyn’s attorney raised a line of questions which referred to the circumstances surrounding the parties’ agreement, the judge stopped the proceedings and asked the attorney specifically whether he was attempting to overturn the original decree. The response was no. We also note that, during the 1991 hearings, Carolyn reaffirmed statements made in 1989, at the time the divorce decree was entered, to the effect that she was fully apprised of the effect of the agreement and wanted no assets from the marriage. In light of these facts, we find no abuse of discretion in the court’s refusal to entertain consideration of this issue, particularly at a time when Jeffery would have been denied the opportunity to respond to Carolyn’s allegations.

II.

Did the District Court err when it did not award child support after modifying the custody order?

Carolyn also contends that the court erred by failing to award her child support when it completely modified the 1990 custody agreement. Carolyn argues that the provision in the order requiring Jeffery to pay transportation costs constituted an order “concerning child support.” Relying on § 40-4-204, MCA, she maintains that the court was required to apply the uniform child support guidelines and establish an appropriate amount of child support in view of the new custody arrangement.

Section 40-4-204(3), MCA, provides that when a court issues or modifies an order concerning child support, the standards outlined in § 40-4-204(2), MCA, and the uniform child support guidelines, must be considered, and if no support order is made, the court must state its reasons for not doing so. We note, however, that this statute only applies when the issue of support is before the court.

In this instance, the issue of child support was not before the court — there was no request for support raised by either party in the pleadings that were being considered by the court, no testimony was adduced establishing a need for support, and no evidence was offered concerning child support. Furthermore, in the proposed findings of fact and conclusions of law submitted by the parties after the trial, neither party addressed child support.

Because the issue of child support was not before the court, we find no error in the court’s failure to make such an award.

III.

Did the District Court abuse its discretion when it denied Carolyn’s request for attorney fees?

Finally, Carolyn maintains that the court abused its discretion when it refused to order Jeffery to pay her attorney fees after she was named as primary residential custodian.

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. 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 first noted that Carolyn failed to satisfy a showing of necessity which is a condition precedent to an award of attorney fees. In re Marriage of Forsman (1987), 229 Mont. 411, 747 P.2d 861. Carolyn failed to testify concerning her inability to pay the fees in question on numerous occasions when testimony would have been appropriate, and never demonstrated Jeffery’s ability to pay the fees requested. The court also noted that both Jeffery and Carolyn were responsible for the fact that excessive attorney fees had been incurred during this prolonged litigation, and as such, neither party should be responsible for paying the other’s costs.

We have previously held that when a trial court refuses to award attorney fees, the underlying reasoning must be indicated in the findings of fact. Forsman, 747 P.2d at 864. In this instance, the court clearly set forth and substantiated its reasoning for not granting Carolyn’s request. We hold that the District Court did not abuse its discretion when it refused to award attorney fees to Carolyn.

The decision of the District Court is affirmed.

JUSTICES GRAY, HARRISON, HUNT and WEBER concur.


author: JUSTICE WEBER JUSTICE TRIEWEILER JUSTICE McDONOUGH,

text:
    VERNON SAGE and ALMA SAGE, Plaintiffs and Respondents, v. MICHAEL T. ROGERS and AMERICAN PANEL COMPANY, Defendants and Appellants.
    No. 92-138.
    Submitted on Briefs November 5, 1992.
    Rehearing Denied April 8, 1993.
    Decided March 9, 1993.
    50 St.Rep. 244.
    257 Mont. 229.
    848 P.2d 1034.

      For Defendant and Appellants: Terry G. Sehestedt, Missoula.
    For Plaintiffs and Respondents: Darla J. Keck, Datsopoulos, MacDonald & Lind, Missoula.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from an order of the Fourth Judicial District Court, Missoula County, granting plaintiffs possession of commercial rental property plus costs for damages and denying defendant’s motion for a new trial. We affirm the court’s judgment with the exception of $95.85 as herein noted.

The issues on appeal are:

1. Did the District Court abuse its discretion in denying Rogers’ motion for a new trial?

2. Did the District Court err in ruling that notice given to terminate a tenancy when insufficient for one period of tenancy is sufficient to terminate for a subsequent rental period?

3. Did the District Court err in ruling that the landlords were entitled to holdover penalties for the portion of December during which the tenant remained in possession, plus treble rent?

4. Did the District Court abuse its discretion in awarding damages to the landlords for the loss of their locking device?

5. Did the District Court err in awarding damages to the landlords for the damage sustained on the landlords’ rental property?

6. Did the District Court abuse its discretion in refusing to award damages to tenant on the ground that amounts claimed were speculative?

7. Did the District Court abuse its discretion in refusing to award nominal damages to tenant?

8. Did the District Court abuse its discretion in refusing to award tenant attorney’s fees incurred with respect to the November 28,1989 hearing?

9. Did the District Court abuse its discretion in awarding landlords costs for a discovery deposition and for a partial transcript of proceedings?

This case involves the rental of commercial property located at 5000 Highway 93 South, Missoula, Montana. The property owned by Vernon and Alma Sage (Sages or landlords), was advertised for rent in the Messenger at a $575 per month rental fee. On April 19, 1989, the ad was answered by Michael T. Rogers (Rogers or tenant) who owns American Panel Company, Inc. Rogers was seeking a location for his company which manufactures heat resistant panels for wood stoves.

The Sages subsequently rented the space to Rogers on an oral lease, with the rent payable on the first of every month. Both the Sages and Rogers testified that the utility bill was to be put into Rogers’ name and that he was required by the Sages to keep the premises clean. The Sages testified that Rogers failed to pay the rent on time, did not have the utility bill put into his name and left garbage all over the property. According to the Sages, Rogers also damaged parts of the warehouse itself.

As a result, the Sages sent a Notice of Rental Agreement Termination to Rogers on July 24,1989. This notice terminated the month-to-month tenancy with the defendant and required that he leave on or before August 24,1989. The Sages extended his termination date to October 1,1989, if certain conditions were met: he must agree to pay the next rent check on time and to pay $250 deposit for the utility bill and $500 for cleaning. Rogers paid the $250 for the utilities, did not pay the $500 and did not pay his rent on time. At the end of September the Sages went on a fishing trip, expecting Rogers to be gone from the premises when they returned. However, when they returned on October 1, 1989, they found Rogers still there. Rogers placed a rent check on the Sages’ desk and Mr. Sage cashed the check even though the Sages still wished Rogers to leave the premises.

After Mr. Sage cashed the check he provided another notice to Rogers to vacate. The notice was given to Rogers on October 3, 1989 for him to vacate by November 1, 1989. When the notice was delivered, Rogers stated that he would not leave the premises. On November 2,1989, when Rogers was still at the warehouse, the Sages placed a padlock on the front door, along with a note addressed to Rogers requesting that he come to the Sages’ office. Rogers was out of town but an employee came to the Sages’ office to request entrance to the factory-warehouse. The Sages immediately removed the lock from the door.

On November 3,1989, Rogers attempted to pay rent for the month of November by laying the check on the Sages’ office desk. Mrs. Sage ran after him and threw the check into Rogers’ car window as he drove away. She told him that she did not want the check. She then placed a padlock on the door. Minutes later Rogers returned and, seeing the lock on the door, headed for his forklift. The Sages’ son, Russell, seeing that Rogers intended to force entry into the building, shot several “warning” shots into the air and then called the police to report having done this. Rogers continued toward the overhead door with his forklift and forced it open, damaging the door.

The Sages filed an action for possession and damages in the Fourth Judicial District Court, Missoula County, on November 6, 1989. The District Court ruled on this motion on November 28,1989 stating that although the October 3 notice was not sufficient to evict Rogers by November 1,1989, a prima facie case existed for Rogers to vacate the premises by December 1. It, therefore, denied the Sages’ motion for immediate possession of the property. The court informed the Sages that they could not file their claim for ejectment again until December 1,1989, because the court could not eject the tenant prior to that date.

The Sages filed an Amended Complaint for possession and damages on December 1, 1989. Since Rogers had still not left the premises, the Sages moved the court to issue an order to show cause why Rogers should not be ordered to immediately return possession of the property to the Sages. The motion requested a hearing on December 11, 1989. The motion was never ruled on because Rogers vacated the premises voluntarily on December 6, 1989.

A trial was held on September 11,1991. The District Court issued its findings of fact and conclusions of law on September 24, 1991. Rogers filed an objection to the Sages’ statement of costs and in October, 1991 moved in the alternative for a new trial or for amended findings and judgment. The court denied the motion. From that denial and the trial court’s decision, Rogers now appeals.

I.

Did the District Court abuse its discretion in denying Rogers’ motion for a new trial?

Rogers argues that he is entitled to a new trial because of irregularity in the proceedings. According to Rogers, the court ruled on who was entitled to possession of the property during the November 28, 1989 hearing, before Rogers had an opportunity to present his case. According to Rogers, the trial judge went into court thinking he had already ruled on who was entitled to permanent possession. The Sages argue that no irregularities occurred either at the hearing in November of 1989 or the court trial of September 11, 1991.

A new trial will be granted when there is an: irregularity in the proceedings of the court, jury, or adverse party or any order of the court or abuse of discretion by which either party was prevented from having a fair trial;...

Section 25-11-102(1), MCA. The District Court denied Rogers’ motion for a new trial. We will not reverse a district court’s grant or denial of a new trial absent a manifest abuse of discretion. Tappan v. Higgins (1989), 240 Mont. 158, 783 P.2d 396.

Rogers’ petition for a new trial centers on the court’s decision of November 28, that the Sages could file their ejectment action again on December 1, 1989. In its ruling, the court determined that the October 3, 1989 notice was insufficient to terminate the tenancy as of November 1, 1989, but, as a matter of law, was sufficient to terminate a monthly tenancy on December 1, 1989. Therefore, the court instructed the Sages that they must file their ejectment action again on December 1,1989 because the court could not consider any action during the period that Rogers had to vacate.

The court’s direction was a legal one and determined only the sufficiency of the notice to terminate the tenancy on November 1, 1989. The court did not decide on November 28, 1989, who had eventual right to possession or what the actual term of the original agreement was. We conclude that Rogers mischaracterizes the court’s statements and actions during the November 28, 1989 hearing. By issuing the hearing order, the court did not create irregularities in the proceedings at trial nor did it fail to permit Rogers a chance to present his case. Reversal of the November 28 decision is not warranted.

We hold that the District Court did not abuse its discretion in denying Rogers’ motion for a new trial.

II.

Did the District Court err in ruling that notice insufficient to terminate one periodic tenancy is sufficient to terminate a subsequent periodic tenancy?

Rogers claims that a notice to terminate a tenancy which is insufficient for one periodic tenancy is insufficient forever. The Sages argue that a notice insufficient for one thirty day period works to terminate the tenancy at the next possible date.

The resolution of this issue is a legal determination. We review matters of law as to whether they are correct. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470,803 P.2d 601. The question of whether a notice insufficient to terminate one periodic tenancy is fatal for all subsequent periods or whether it is sufficient to terminate a subsequent periodic tenancy is a case of first impression in Montana.

Rogers contends that Montana decided this question forty years ago in Welsh v. Roehm (1952), 125 Mont. 517, 241 P.2d 816. According to Rogers, Welsh stands for the proposition that if a notice is insufficient for one thirty-day period, it is insufficient forever; thus, such insufficiency makes the notice at issue fatal. However, Welsh is not dispositive of the case at bar.

First, Welsh is a residential case. The action before us involves commercial property. Second, in Welsh, the owner was told by the federal government that he could not evict the tenants because of federally controlled rent procedures. Here, there is no question of federal rent control. Third, the Welsh Court did not concern itself with any further insufficiency beyond the first insufficient notice:

The notice was insufficient under Montana law to form a basis of a court action to remove the Welshs [sic] from the premises, since such notice, the rent having been paid in advance, must be of thirty days duration.

Welsh, 125 Mont. at 519, 241 P.2d 816. The Welsh Court never considered any further notice because no further notice was given. Instead of a second notice, Welsh’s landlord simply moved into the Welsh’s living room with his family and stayed for seventeen days. Both Welsh’s facts and its holding make it inapplicable to the case before us.

While no other Montana case deals specifically with this issue, both case law from other jurisdictions and learned treatises provide that the original insufficiency does not make the notice fatal:

It has been held that while a notice given shortly after the beginning of one monthly period is inadequate to terminate the tenancy at the end of that period or at the expiration of the time stated in the notice, it is nevertheless adequate to terminate the tenancy at the end of the next monthly period.

50 Am.Jur.2d, Landlord and Tenant, § 1211 (1970). Further, the Restatement 2d of Property states:

On March 1, Landlord and Tenant enter into a month to month tenancy to begin on that date. No provision for notice is made. In order to terminate Tenant’s tenancy on November 30, Landlord must give Tenant notice no later than 11:59 p.m. on October 31. A notice given on November 1 will not run for one full period before the monthly tenancy renews itself immediately at 11:59 p.m. on November 30. However, the November 1 notice is effective to terminate the lease on December 31 even though it specified November 30 as the date of termination.

Restatement 2d of Property, Landlord Tenant Relationship, § 1.5, comment f (1977).

The District Court, here, relied not on the treatises but on Dickens v. Hall (N.M. 1986), 718 P.2d 683, for its determination that the October 3 notice in the instant case, although insufficient for termination of tenancy by November 1, was nevertheless effective on December 1. The facts of Dickens are very similar to the facts here.

The commercial lease in question in Dickens was an oral month-to-month lease. Dickens notified Hall by letter dated March 8,1984, that he was to vacate the premises. Hall never received the letter, so on March 29,1984, Dickens sent Hall another letter to vacate which was received on April 2,1984. Hall refused to leave the premises and Dickens filed an action on April 11, 1984. The court ruled that Dickens was entitled to the premises after May 2, 1984 because a notice insufficient for one thirty-day period is sufficient for the subsequent period. Dickens, 718 P.2d at 685. The court also ruled that Dickens could not file the action during the time that Hall had to vacate.

Nothing in Montana’s statutes pertaining to commercial leases controls the situation here. Section 70-26-201, MCA, in substance provides that commercial leases are presumed to be for a one-year term if no other term is expressed in the hiring. With regard to renewal by continued possession, § 70-26-204, MCA, provides:

Renewal of lease by lessee’s continued possession. If a lessee of real property leased under an arrangement not governed by chapter 24 [Residential leases] of this title remains in possession thereof after the expiration of the hiring and the lessor accepts a rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding 1 month when the rent is payable monthly, or in any case 1 year.

With regard to the required notice to terminate a lease, § 70-26-205, MCA, provides in pertinent part:

Notice required to terminate lease. (1) A hiring of real property for a term not specified by the parties is presumed to be renewed as stated in 70-26-204 at the end of the term implied by law unless one of the parties gives notice to the other of his intention to terminate the hiring at least as long before the expiration thereof as the term of the hiring itself, not exceeding 1 month....

According to the record, the lease was an oral month-to-month lease. Because the rent was payable monthly, § 205 required a month’s notice to vacate or terminate. While these statutes do determine that a one-month notice was required, they do not address the specific question before us: whether a notice given on October 3 requiring the tenant to vacate by November 1 was sufficient to require vacation on December 1.

In a similar manner, § 70-27-104, MCA, with regard to termination of a tenancy at will requires written notice to remove within a period of not less than one month to be specified in the notice, but does not address the specific issue here.

We conclude that the above quotation from Am.Jur.2d, Landlord and Tenant, and from Restatement 2d of Property correctly sets forth the rule to be applied in Montana. We therefore hold that the October 3,1989 notice to vacate by November 1,1989 was insufficient to terminate the tenancy on October 31, 1989, but was effective to terminate the tenancy on November 30, 1989. As a result we affirm the determination of the District Court on this issue.

III.

Did the District Court err in ruling that the landlords were entitled to holdover penalties for the portion of December during which the tenant remained in possession plus treble rent?

Rogers contends that the court could not award quadruple damages. The Sages contend that a person who remains in possession after adequate written notice to vacate is “holding over” and that such tenant can be assessed treble damages plus interest and exemplary damages.

The tenant remained in possession through December 6,1989 and did not pay rent for such occupancy. The District Court determined that at a monthly rent of $575, the rent for six days was $95.85. Therefore, the court awarded the Sages the amount of $95.85 x 3 as treble rent and $95.85 as rent for the six day period which the tenant heldover. Whether this assessment was appropriate is a question of law which we review as to whether the District Court was correct. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

Here, Rogers’ argument concerning the quadruple rent is well-taken. The treble rent is expressly provided for in § 70-27-207, MCA. However, the $95.85 which the Sages claim are exemplary damages pursuant to § 70-27-209, MCA, are not appropriate. Exemplary damages are only awarded as punitive in nature:

Punitive damages - when allowed. (1) Except as otherwise expressly provided by statute, a judge or jury may award, in addition to compensatory damages, punitive damages for the sake of example and for the purpose of punishing a defendant.
(2) (a) Unless otherwise expressly provided by statute, punitive damages may not be recovered in any action arising from:
(i) contract; or
(ii) breach of contract....

Section 27-1-220, MCA. This case is a contract case and the applicable statutes do not expressly provide for punitive damages in a contract situation dealing with a commercial lease. We, therefore, conclude that the District Court was only permitted to award treble rent as damages and not the separate amount of $95.85.

Therefore, we hold that the District Court erred in ruling that the landlords were entitled to holdover penalties for the portion of December during which the tenant remained in possession plus treble rent. We reverse the District Court assessment of the $95.85 rent for the six hold over days, but affirm the assessment of treble rent at $95.85 x 3.

IV.

Did the District Court abuse its discretion in awarding damages to the landlord for the loss of their locking device?

Rogers argues that the Sages were not entitled to take the law into their own hands by locking Rogers out of his business. According to Rogers, the Sages should not then benefit from their illegal behavior by demanding recompense for the lock used in the illegal lock out. The Sages contend that they asked for the lock on several occasions, that just because the landlords were not entitled to lock the warehouse, does not mean that Rogers has the right to convert the property to his own use.

The record reveals that the Sages were in error in locking the warehouse door, even if for only a short time. The record further indicates that the lock was not returned to the Sages. Two wrongs do not make a right. Rogers’ failure to return the landlords’ property makes him responsible for its disappearance.

The awarding of damages rests with the sound discretion of the trier of fact. Vinion v. Wood Yard, Inc. (1988), 232 Mont. 110,755 P.2d 31. We hold that the District Court did not abuse its discretion in awarding damages to the landlords for the loss of their locking device.

V.

Did the District Court err in awarding damages to the landlords for the damage sustained on the landlords’ rental property?

The District Court awarded judgment against the defendants for repairs and cleaning in the amount of $3,003.74, which was composed of the following:

a. Repair of rear door Repairs completed by Overhead Door Company of Missoula ... $60.00
b. Pressure wash floor - removal of cement/masonry Cleaning done by Hydro-Chem Industrial Cleaning, $2070.00
c. Sump, clean and unplug floor drain Repairs and Cleaning done by Rod’s General Services,... Florence, Montana... $277.50
d. Replace toilet facility Completed by Little Lodges, ... Missoula... $386.24
e. Painting of walls Completed by Rod’s General Services, Florence, Montana... $100.00
f. Replacement of exterior metal panels $110.00

Mr. Sage testified that they received bids from different parties for each of the items listed above and accepted the low bid in each instance. Mr. Sage identified the repair estimates and the bills submitted and testified that the Sages had paid each of the bills making up the above items. Rogers objected to the admission of the bills in evidence on the grounds that the bills were hearsay.

When reviewing the findings of a district court sitting without a jury, we determine whether the findings are clearly erroneous. Trad Industries, Ltd. v. Brogan (1991), 246 Mont. 439, 805 P.2d 54. Clearly erroneous is defined as whether the court’s decision is supported by substantial evidence. Id.

A representative of Hydro-Chem testified at length and his testimony was sufficientto establish the $2,070 charged by his company. Mr. and Mrs. Sage also testified as to the other items, explaining in detail the nature of the services performed, the estimates obtained from other persons, and described the nature of the services rendered and the payment of each of the items by the Sages. The record contains no evidence submitted by Rogers in opposition to the evidence by the Sages. We conclude that the District Court was not clearly erroneous in awarding the damages in the amount of $3,003.74 and that there is substantial evidence to support each award without consideration of the written statements or bills themselves. We further conclude that appellant’s argument concerning hearsay is without merit.

We hold the District Court did not err in awarding damages to the landlords for the damages sustained on the landlords’ rental property.

VI.

Did the District Court abuse its discretion in refusing to award damages to tenant on the ground that amounts claimed were speculative?

Rogers contends that he was damaged by the time that his company was locked out by the Sages and by the adverse working conditions the Sages created by shooting a gun in the air. The Sages contend that Rogers has proven no damage. In addition, the Sages argue that the only piece of evidence submitted by Rogers was a summary of his work records for 1989 and 1990. The record reflects that Rogers provided no concrete evidence that his business was down 206 panels as he testified.

In order to recover for lost profits, Rogers has to establish them with some certainty as well as prove the source of the lost profits. Stensvad v. Miners and Merchants Bank of Roundup (1982), 196 Mont. 193, 640 P.2d 1303. A review of the record failed to establish that Rogers presented evidence to establish his lost profits.

We hold that the District Court did not abuse its discretion in refusing to award damages to tenant on the ground that amounts claimed were speculative.

VII.

Did the District Court abuse its discretion in refusing to award nominal damages to tenant?

Rogers asserts that a forcible entry or detainer occurred by the landlords when they excluded him from the premises. The Sages contend that the District Court could have awarded nominal damages to Rogers but was under no directive to do so.

Nominal damages when no appreciable detriment. When a breach of duty has caused no appreciable detriment to the party affected, he may yet recover nominal damages.

Section 27-1-204, MCA. The District Court may set nominal damages. The record indicates that the District Court found that the Sages acted in a good faith belief that they were permitted to lock the tenant out.

We hold that the District Court did not abuse its discretion in refusing to award nominal damages to tenant.

VIII.

Did the District Court abuse its discretion in refusing to award tenant attorney’s fees incurred with respect to the November 28,1989 hearing?

Rogers argues that although there is no statute or contract that provides for attorney’s fees in this case, the court should have awarded them to tenant because the Sages were not entitled to evict them on November 28, 1989. The Sages argue that there is no basis in equity or law for an award of attorney’s fees to the tenant.

The general rule is that absent a statute or contract, attorney’s fees will not be awarded. Joseph Russell Realty Co. v. Kenneally (1980), 185 Mont. 496, 605 P.2d 1107. Here, the court did not award attorney’s fees. Absent an abuse of the lower court’s discretion, this Court will not reverse the lower court’s decision concerning attorney’s fees. Russell, 185 Mont. at 505, 605 P.2d at 1112.

We hold that the District Court did not abuse its discretion in refusing to award tenant attorney’s fees incurred with respect to the November 28,1989 hearing.

IX.

Did the District Court abuse its discretion in awarding landlords costs for a discovery deposition and for a partial transcript of proceedings?

Rogers contends that the District Court improperly awarded the Sages $126.75 for a deposition which was not used at trial and $16.25 for a partial transcript of the November 28, 1989 hearing which was transcribed for the Sages’ convenience. The Sages argue that these charges were proper under § 25-10-501, MCA.

Section 25-10-501, MCA, provides the procedure for which the party in whose favor judgment is rendered claims his costs. The Sages claimed both the aforementioned as cost of the litigation. The Sages here indicate that the deposition of Rogers was used at the time of the September 11,1991 trial to impeach him and thus the use of the deposition was taxable and, therefore, an allowable cost. Deposition costs are allowable where the deposition is used at trial. Cash v. Otis Elevator, Co. (1984), 210 Mont. 319, 684 P.2d 1041. The record sustains the Sages’ argument that the deposition was so used.

The record indicates that before the September 11,1991 trial, and before the court issued its findings and conclusions, the partial transcript of the November 28,1989 hearing was used to refresh the judge’s memory about his prior ruling. Because this partial transcript was so used, its cost is legitimate.

We hold the District Court did not abuse its discretion in awarding the landlords their costs for a discovery deposition and for a partial transcript of proceedings.

We affirm the court’s judgment with the exception that it should be reduced by the amount of $95.85.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON and HUNT concur.

JUSTICE TRIEWEILER

concurring in part and dissenting in part.

I concur with the majority’s conclusions, except for those expressed under Issue V. It is clear that there was an inadequate evidentiary basis for the damages awarded in paragraphs (a), (c), (d), and (f) of the District Court’s Finding No. 14. Therefore, I would amend the judgment by striking the recovery of damages in the amount that those items represent.

Section 27-1-302, MCA, requires that “[d]amages must in all cases be reasonable, and ... no more than reasonable damages can be recovered.”

In this case, the plaintiffs’ evidence in regard to the above damages consisted of offering several repair estimates and bills and then testifying that the bills had been paid. At no time was there any evidence that these expenditures were reasonable for the type of damage that had been sustained.

Furthermore, the bills on which the District Court based its damage award should never have been admitted. They were clearly out-of-court statements as defined in Rule 801, M.R.Evid., which were offered to prove the truth of the matters asserted therein. The bills were offered to prove that the work was done and that the amount for which the bills were submitted was a reasonable amount. Therefore, pursuant to Rule 802, M.R.Evid., the bills were not admissible and since defendants properly objected to their admission on the basis that they constituted hearsay, they should have been excluded. Without the inadmissible bills, there was no evidentiary basis for determining the reasonable amount of plaintiffs’ damages. The mere fact that plaintiffs paid the amounts stated did not make their expenditure reasonable.

Plaintiffs had the burden of proving by a preponderance of the evidence the reasonable value of their damages. The majority casually shifts the burden to defendants by suggesting that since defendants did not disprove the amount of damages claimed by plaintiffs, then plaintiffs’ proof was sufficient.

This new rule of trial practice should indeed surprise most of the practicing bar in the State of Montana.

The majority opinion ignores simple rules of evidence, elementary principles of trial practice, and fundamental rules regarding a litigant’s burden of proof.

For these reasons, I dissent from Part V of the majority opinion.

JUSTICE GRAY concurs in the foregoing concurrence and dissent.

JUSTICE McDONOUGH,

concurring in part and dissenting in part.

I concur with the majority except as to Issue V to which I dissent. The bills as offered were not admissible and therefore plaintiffs did not prove the damages allegedly represented by the bills.


author: JUSTICE GRAY JUSTICE TRIEWEILER

text:
    FRED STANSBURY, Plaintiff and Appellant, v. PROFESSOR RUEY-LIN LIN, Defendant and Respondent.
    No. 91-486.
    Submitted on Briefs March 26, 1992.
    Decided March 10, 1993.
    50 St.Rep. 251.
    257 Mont. 245.
    848 P.2d 509.

      For Plaintiff and Appellant: Craig W. Holt, Billings.
    For Defendant and Respondent: Norman C. Peterson, Agency Legal Services Bureau, Helena; Donna Davis, Matovich, Addy & Keller, Billings; Bill Gianoulias, Tort Claims Division, Helena; LeRoy H. Schramm, Chief Legal Counsel, Office of the Commissioner of Higher Education, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Fred Stansbury (Stansbury) appeals from an order of the District Court of the Thirteenth Judicial District, Yellowstone County, granting summary judgment in favor of the respondent, Professor RueyLin Lin (Professor Lin). We affirm.

The sole issue on appeal is whether the District Court erred in granting summary judgment in favor of Professor Lin.

On March 26, 1990, Stansbury appeared as a student for the first day of a sociology class taught by Professor Lin, a professor at Eastern Montana College in Billings. Stansbury alleges that Professor Lin demanded that he leave the classroom and that, upon his departure from the classroom, Professor Lin slandered him in a thirty-minute tirade to the remaining students in the class.

On January 23, 1991, Stansbury’s attorney, on behalf of Stansbury, signed a settlement agreement in which Stansbury released Eastern Montana College and its officers, employees and agents from any liability for any alleged slander of Stansbury by Professor Lin. The agreement contained a clause which stated:

To resolve this case, the parties agree as follows:

b. Nothing herein precludes Fred Stansbury from pursing [sic] legal recourse against Professor Ruey-Lin Lin for actions of his outside the course and scope of employment authority of Eastern Montana College or the Montana University System.

The agreement was also signed by representatives of Eastern Montana College and the Montana University System. Stansbury received the settlement provided in the agreement.

Following the execution of the settlement agreement, Stansbury filed a slander complaint in the District Court against Professor Lin as an individual defendant. The complaint was accompanied by and incorporated an affidavit made by Stansbury. Stansbury alleged that Professor Lin’s conduct in slandering him was willful and malicious. He sought actual and punitive damages.

Professor Lin moved to dismiss Stansbury’s complaint, arguing that since Stansbury had settled the slander action with Professor Lin’s employer, the State of Montana, Stansbury was statutorily barred by § 2-9-305, MCA, from suing him as an individual. He further argued that -under § 2-9-305, MCA, he was individually immune from suit. In support of his motion to dismiss, Professor Lin submitted to the District Court the settlement agreement signed by the representatives of the State and Stansbury’s attorney. He also submitted the affidavit of the chief legal counsel to the Commissioner of Higher Education, which acknowledged under the authority provided in § 2-9-305, MCA, that Professor Lin was acting within the scope and duty of his employment at the time of the alleged slander.

The motion to dismiss was briefed by both parties. The District Court determined that the parties had relied on facts not contained in the pleadings and, therefore, converted the motion to dismiss into a motion for summary judgment and set a date for an evidentiary hearing.

At the evidentiary hearing, neither party presented evidence and both waived any further presentation of evidence. The District Court then proceeded to hear oral argument on the summary judgment motion. Stansbury contended during oral argument that Professor Lin was acting outside the course and scope of his employment at the time of the alleged slander and that the State previously had acknowledged that fact. Because there was no evidence before the court that the State had acknowledged that Professor Lin was acting outside the course and scope of his employment at the time of the alleged slander, the court gave the parties additional time in which to submit further evidence.

Professor Lin presented nothing further. Stansbury submitted an additional affidavit of his own. Stansbury also submitted an affidavit in which his attorney stated that during the course of settling with Eastern Montana College, he had spoken with JoAnne Sherwood from the office of the Commissioner of Higher Education and had “expressed a distinct concern about the continuation of this action against Professor Ruey-Lin Lin as an individual.” Stansbury’s attorney also stated in his affidavit that the language of the original settlement agreement had been altered to allow Stansbury to proceed against Professor Lin individually.

Thereafter, the District Court granted summary judgment in favor of Professor Lin, stating:

It is clear under § 2-9-305, MCA, that an employee whose conduct gave rise to the suit is immune from liability by reasons of the same subject matter if the governmental entity acknowledges that his conduct was within the course and scope of the employee’s employment. Accordingly, the recovery, by virtue of the settlement against the governmental entity, to wit: Eastern Montana College, constitutes a complete bar to this action.
Counsel for the plaintiff has not produced any evidence to constitute a bar to the application of the express terms of the statute.

This appeal followed.

Did the District Court err in granting summary judgment in favor of Professor Lin?

Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. This Court’s standard of review is the same as the trial court’s, and we will uphold a correct result regardless of the reasons given by the lower court. Shimsky v. Valley Credit Union (1984), 208 Mont. 186, 189-90, 676 P.2d 1308, 1310.

Eastern Montana College, as a college run by the State of Montana, is a governmental entity as defined in Title 2, Chapter 9, MCA. Section 2-9-101(3) and (7), MCA. Section 2-9-305, MCA, is entitled “Governmental entity to be joined as defendant — immunization, defense, and indemnification of employees.” Subsection (5) of that statute provides:

Recovery against a governmental entity under the provisions of parts 1 through 3 of this chapter constitutes a complete bar to any action or recovery of damages by the claimant, by reason of the same subject matter, against the employee whose negligence or wrongful act, error, or omission or other actionable conduct gave rise to the claim. In any such action against a governmental entity, the employee whose conduct gave rise to the suit is immune from liability by reasons of the same subject matter if the governmental entity acknowledges or is bound by a judicial determination that the conduct upon which the claim is brought arises out of the course and scope of the employee’s employment, unless the claim constitutes an exclusion provided in (b) through (d) of subsection (6). [Emphasis added.]

The validity of this statute has not been challenged as part of this appeal.

In interpreting statutes, we must give language its plain meaning. Keller v. Smith (1976), 170 Mont. 399, 404-05, 553 P.2d 1002, 1006. Section 2-9-305, MCA, as a whole is not a model of clarity in drafting. However, the first sentence of § 2-9-305(5), MCA, clearly prohibits any action or recovery against an employee of the State based on the same subject matter for which recovery has already been obtained from a governmental entity. Stansbury has already obtained recovery, in the form of a settlement from Eastern Montana College, for the same subject matter out of which he now brings suit against Professor Lin. We conclude that under the first sentence of § 2-9-305(5), MCA, Stansbury’s settlement with Eastern Montana College is a complete bar to this lawsuit.

As stated above, the settlement between Stansbury and Eastern Montana College provided that “[n]othing herein precludes Fred Stansbury from pursing [sic] legal recourse against Professor Ruey-Lin Lin for actions of his outside the course and scope of employment authority of Eastern Montana College or the Montana University System.” Stansbury argues that this provision in the settlement agreement affirms his continuing right to sue Professor Lin personally. We disagree. This provision only precludes the settlement agreement from cutting off Stansbury’s right to sue Professor Lin. It does not cancel the statutory bar to this action provided by § 2-9-305(5), MCA. When he entered the settlement with Eastern Montana College, Stansbury forfeited his right to sue Professor Lin individually for the same acts. He may not have chosen the best timing sequence for his settlement and lawsuit, but that has no bearing on the right of the State to make a settlement and it has no bearing on Professor Lin’s immunity.

The District Court considered, and in their briefs to this Court the parties have argued, whether Professor Lin’s actions were within the course and scope of his employment, as discussed in the second sentence of § 2-9-305(5), MCA. However, we conclude it is immaterial whether Professor Lin’s actions were within the course and scope of his employment. The second sentence of subsection (5) applies “[i]n any such action against a governmental entity.” This action, which was filed only after Stansbury settled with Eastern Montana College, is not now and never has been an action against a governmental entity. We conclude that the second sentence of § 2-9-305(5), MCA, does not apply here.

Because we have concluded that the first sentence of § 2-9-305(5), MCA, is, on its face, a complete bar to this action, we hold that the District Court did not err in entering summary judgment for Professor Lin.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES McDONOUGH and WEBER concur.

JUSTICE TRIEWEILER

dissenting.

Fred Stansbury has been sandbagged twice. Once by the attorneys for the University System, and a second time by the Supreme Court. Therefore, I dissent.

On January 3,1991, Stansbury filed a complaint against Ruey-Lin Lin and Eastern Montana College (EMC). He alleged, among other things, that on March 26,1990, when he entered Lin’s sociology class at EMC as a student, he was ordered out of the classroom by Lin. He further alleged that after his departure from the room, Lin embarked on a 30 minute tirade during which he intentionally and maliciously defamed Stansbury by referring to him as “lazy” and “stupid,” and otherwise impugned his character and learning ability.

In the affidavit in support of his amended complaint, Stansbury also pointed out that Lin told the rest of the students in the class that Stansbury was ignorant, obnoxious, incapable of learning, and no good as a person or a student.

Shortly after the original complaint was filed, Stansbury negotiated a settlement with EMC. However, according to the affidavit of Stansbury’s attorney, the original settlement agreement proposed by counsel for EMC contained language that precluded further pursuit of the claim against Lin individually. Stansbury’s counsel made it plain to EMC’s representative with whom he negotiated that he intended to continue the claim against Lin as an individual. Therefore, the settlement agreement was amended to provide that:

Nothing herein precludes Fred Stansbury from pursuing legal recourse against Professor Ruey-Lin Lin for actions of his outside the course and scope of employment authority of Eastern Montana College or the Montana University System.

The amended settlement agreement was signed on January 23, 1991, and on February 20, 1991, an amended complaint was filed naming Lin as the only defendant and repeating Stansbury’s allegation that Lin’s actions were intentional and malicious.

An appearance was filed on behalf of EMC by Norman C. Peterson, an attorney employed by the Agency Legal Services Bureau of the Department of Justice of the State of Montana.

On March 27, 1991, Peterson filed a motion to dismiss the complaint, and in support of that motion, filed the affidavit of Leroy Schramm. Schramm is the Chief Legal Counsel to the Commissioner on Higher Education, and in his affidavit stated that the actions of Lin which were complained of by Stansbury were committed within the course and scope of Lin’s employment as a professor at EMC.

The District Court granted the motion to dismiss because it concluded that pursuant to § 2-9-305, MCA, a State employee is immune from liability for conduct which the government alleges was within the course and scope of that person’s employment. The District Court did not hold, and Stansbury has not contended on appeal, that Lin was immune from liability based on the strained interpretation that the majority attaches to § 2-9-305, MCA.

Of course, the District Court’s judgment of dismissal could not be affirmed on the basis that Lin acted within the course of his employment because this Court has since held, in Maguire v. State of Montana (Mont. 1992), [254 Mont. 178], 835 P.2d 755, 758-60, 49 St. Rep. 688, 689-91, that where intentional torts are not committed for the benefit of the employer, they are outside the course of employment as a matter of law and the employer cannot be held vicariously liable for the consequences of such an act. In this case, the defamatory conduct that Lin is accused of was an intentional act, and according to the majority opinion in Maguire, was outside the course of his employment as a matter of law. That conclusion cannot be varied by the self-serving affidavit of one of the State’s own agents. The State is judicially estopped from asserting inconsistent arguments regarding the effect of an intentional act — depending on which position best serves the State’s interest in a given case.

Therefore, ignoring all rules of statutory construction, the majority has simply concluded that based on § 2-9-305(5), MCA, recovery cannot be had against an employee of the State based on the same subject matter for which recovery was had against the State. The majority’s decision is based upon the first sentence of § 2-9-305(5), MCA. However, that statute contains a number of provisions, and where a statute contains “several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.” Section 1-2-101, MCA.

For example, § 2-9-305(1), MCA, provides that:

It is the purpose of this section to provide for the immunization, defense, and indemnification of public officers and employees civilly sued for their actions taken within the course and scope of their employment. [Emphasis added.]

Furthermore, the second sentence of subsection (5) explains the first sentence by providing that:

In any such action against a governmental entity, the employee whose conduct gave rise to the suit is immune from liability by reasons of the same subject matter if the governmental entity acknowledges or is bound by a judicial determination that the conduct upon which the claim is brought arises out of the course and scope of the employee’s employment.... [Emphasis added.]

The construction of the majority ignores this provision of the statute and ignores the express purpose of the statute which is to immunize employees for only those acts which are in the course and scope of their employment.

The majority opinion concludes that the second sentence is not applicable because this action “is not now and never has been an action against a governmental entity.” The majority is incorrect. This action started out as an action against EMC. The complaint was amended to dismiss EMC only after a settlement was entered into with that defendant.

The majority opinion ignores other rules of construction. Section 1- 2-102, MCA, provides that “in the construction of a statute, the intention of the legislature is to be pursued if possible.” Section 2- 9-305, MCA, makes very clear that it is the Legislature’s intent that only those employees who are acting in the course and scope of their employment are immune from personal liability. However, the majority is unimpressed.

Section 1-2-102, MCA, further provides that “when a general and particular provision are inconsistent, the latter is paramount to the former, so a particular intent will control a general one that is inconsistent with it.”

The majority makes passing reference to the fact that § 2-9-305(5), MCA, is not a model of clarity. However, the reason it is unclear is that the general provision contained in the first sentence and the particular provision contained in the second sentence are inconsistent. The first sentence provides for general immunity for an employee when recovery has been had against the governmental entity by whom he or she is employed. However, the second sentence limits that immunity to cases in which there is an acknowledgment or judicial determination that the employee acted within the course and scope of his or her employment. Therefore, the more particular provision found in the second sentence controls over the general statement of intent found in the first sentence. The majority has ignored this rule of construction.

In summary, this Court has previously held that intentional torts are outside the course and scope of State employees’ employment. That rule of law cannot be changed by an affidavit of one of the State’s agents when it serves the State’s interest to do so. Section 2-9-305, MCA, when construed so as to accomplish the intent of the Legislature and give effect to all of its provisions, does not provide immunity to Lin under the circumstances in this case because as a matter of law he was not acting within the course and scope of his employment.

For these reasons, I dissent from the opinion of the majority and would reverse the judgment of the District Court.

JUSTICES HARRISON and HUNT concur in the foregoing dissent.


author: JUSTICE GRAY

text:
    BARBARA J. SCHNEEMAN, Petitioner and Appellant, v. THE STATE OF MONTANA, DEPARTMENT OF LABOR AND INDUSTRY, and NORTHERN PLAZA LIMITED PARTNERSHIP, a Colorado limited Partnership, d/b/a THE RADISSON NORTHERN HOTEL, Respondent and Respondent.
    No. 91-603.
    Submitted on Briefs May 14, 1992.
    Decided March 10, 1993.
    50 St.Rep. 256.
    257 Mont. 254.
    848 P.2d 504.

      For Petitioner and Appellant: Timothy J. Whalen, Whalen & Whalen, Billings.
    For Respondent: Daniel B. McGregor, Department of Labor and Industry, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Appellant Barbara Schneeman (Schneeman) appeals from a Memorandum Order of the Thirteenth Judicial District, Yellowstone County, which affirmed a Board of Labor Appeals’ determination that she was ineligible for unemployment compensation benefits. We affirm.

Schneeman raises the following procedural issues on appeal:

Did the District Court improperly deny Schneeman an opportunity to present the appeal of her unemployment insurance claim:

1) By refusing to allow her to engage in discovery and present evidence in connection with her constitutional and state law claim of entitlement to a fair and impartial hearing and decision on her unemployment claim; and

2) By ruling on her petition for judicial review without giving her an opportunity to brief and argue the merits of that portion of her appeal?

Because the issues raised by Schneeman are procedural in nature, only a short recitation of the underlying facts is necessary. Schneeman began working for the Radisson Northern Hotel as an account executive in the marketing department in August 1989. She was eventually assigned responsibility for the state and federal government accounts and the community association account. Her initial performance evaluations indicated that she was performing satisfactorily. However, problems developed between Schneeman and her fellow employees and supervisors. Her supervisor eventually determined that she should undergo a “retraining” process during which her actions would be closely monitored. Before the process began, Schneeman terminated her employment effective June 6, 1990, in response to what she considered a “constructive termination of [her] employment.” Her supervisor did not request that she leave or discharge her; her position remained available to her at the time she terminated her employment.

Schneeman filed a Claimant’s Discharge Statement with the local office of the Benefits Bureau of the Unemployment Insurance Division of the Department of Labor and Industry. The deputy awarded Schneeman benefits after finding that her “separation [from employment] was with good cause attributable to the employment.” Her employer appealed to the appeals referee, who reversed the deputy. On appeal, the Board of Labor Appeals (Board) adopted as its own the findings and decision of the referee. The District Court subsequently affirmed the Board’s decision.

I

Did the District Court err in refusing to allow discovery and an evidentiary hearing?

Before the District Court, Schneeman sought to conduct discovery and present evidence in support of the following claims which she alleged in her petition for judicial review:

8. [T]he actions of the Board violated the constitutional rights of the petitioner to due process of law;
9. The history of decisions of the Appeals Referee in this case support a violation of Section 39-51-305, MCA providing for the appointment of an impartial Appeals Referee for the necessary and proper administration of the unemployment insurance laws;

Conceding that these issues were not raised in any earlier stage of the process, Schneeman argues that she could not have raised them, especially the due process claim, at the agency level. She argues that neither the appeals referee nor the Board had jurisdiction to pass on constitutional questions or whether their actions satisfied the requirements of § 39-51-305, MCA. She relies on § 2-4-703, MCA, a provision of the Montana Administrative Procedure Act (MAPA), which allows for the presentation of additional evidence during judicial review of a contested case if the evidence is material and there is a good reason for failure to present it in the proceedings before the agency.

In City of Billings v. State Bd. of Labor Appeals (1983), 204 Mont. 38, 663 P.2d 1167, this Court held that the provisions of MAPA do not apply to judicial review of a claim for unemployment insurance benefits before the Board of Labor Appeals. In detailing the reasons MAPA does not apply, we noted that by its own terms MAPA is inapplicable where, as with the unemployment insurance laws, a complete procedure exists for handling claims, including a procedure for judicial review. Section 2-4-107, MCA. We have followed and relied on City of Billings in numerous cases. See Decker Coal Co. v. Employment Sec. Div. (1983), 205 Mont. 1, 667 P.2d 923; Gypsy Highview Gathering System, Inc. v. Stokes (1986), 221 Mont. 11, 716 P.2d 620; Zimmer-Jackson Assoc., Inc. v. Department of Labor and Indus. (1988), 231 Mont. 357, 752 P.2d 1095 (citing Gypsy Highview). See also Ward v. Johnson (1990), 242 Mont. 225, 790 P.2d 483 (§ 39-51-2410(5), MCA, limits scope of judicial review of Board of Labor Appeals decision).

Schneeman relies on Slater v. Employment Sec. Div. (1984), 208 Mont. 166, 676 P.2d 220, to argue that MAPA does apply to judicial review of an unemployment insurance claim, and that she is entitled to present evidence before the District Court pursuant to § 2-4-703, MCA. It is true that we departed from City of Billings in Slater in stating that the judicial review section of MAPA, § 2-4-704, MCA, "elaborates” on the judicial review provisions of the unemployment insurance laws. Slater, 676 P.2d at 222. We did not, however, go so far as to extend any other provisions of MAPA, including § 2-4-703, MCA, to judicial review of an unemployment insurance claim. Therefore, we do not find Schneeman’s argument persuasive. Furthermore we expressly overrule that portion of Slater that states that MAPA elaborates on the standard of judicial review of a claim for unemployment insurance benefits.

Moreover, notwithstanding the fact that MAPA does not apply, Schneeman was not entitled to discovery or an evidentiary hearing for other reasons. We first address Schneeman’s claim that the requirements of § 39-51-305, MCA, were not satisfied. Section 39-51-305, MCA, entitles Schneeman to an impartial appeals referee:

Department to appoint appeals referees. To hear and decide disputed claims, the department shall appoint such impartial salaried appeals referees as are necessary for the proper administration of this chapter in accordance with 39-51-304. No person shall participate on behalf of the department in any case in which he is an interested party. The department may designate alternates to serve in the absence or disqualification of an appeals referee.

She contends that the referee who heard her claim was not impartial and that she was entitled to pursue discovery and present evidence on that issue during her judicial review proceeding in the District Court. However, Montana law and the administrative rules promulgated by the Department of Labor and Industry provided Schneeman with the means of addressing her claim of bias long before she reached the district court level.

Title 24, Chapter 11 of the Administrative Rules of Montana pertains to the Unemployment Insurance Division. More specifically, 24.11.319, ARM, sets forth a procedure for the disqualification of an appeals referee pursuant to § 2-4-611, MCA. Section 2-4-611, MCA, provides in pertinent part:

Hearing examiners - ... disqualification of hearing examiners and agency members.
(4) On the filing by a party, hearing examiner, or agency member in good faith of a timely and sufficient affidavit of personal bias, lack of independence, disqualification by law, or other disqualification of a hearing examiner or agency member, the agency shall determine the matter as a part of the record and decision in the case. The agency may disqualify the hearing examiner or agency member and request another hearing examiner pursuant to subsection (2) or assign another hearing examiner from within the agency. The affidavit must state the facts and the reasons for the belief that the hearing examiner should be disqualified and must be filed not less than 10 days before the original date set for the hearing.

This procedure provides a claimant with an opportunity to raise and support the issue of claimed bias of an appeals referee; it also provides a means by which the issue can be determined timely and on the record. Schneeman failed to raise the issue of the referee’s bias as required, and in the absence of a timely request for disqualification, the matter could not properly be raised or addressed in the District Court. In re Sorini (1986), 220 Mont. 459, 462, 717 P.2d 7, 9.

We now address Schneeman’s claim that the Board was not impartial and, as a result, her right to due process was violated. The requirements of due process apply to administrative agencies. See Montana Power Co. v. Public Serv. Comm’n (1983), 206 Mont. 359, 671 P.2d 604. Ajudicial body, not an administrative body, is the proper forum to decide constitutional questions, Jarussi v. Board of Trustees (1983), 204 Mont. 131, 135-136, 664 P.2d 316, 318, especially the constitutionality of its own actions, Hays v. State Dept. of Business Reg. (Fla. Dist. Ct. App. 1982), 418 So.2d 331, 332. However, we have stated that “where the statutes provide for judicial review of a particular order made or agreed upon by a prejudiced commissioner there is no denial of due process.” Cascade County Consumers Assoc. v. Public Serv. Comm’n (1964), 144 Mont. 169, 191, 394 P.2d 856, 867, cert. denied, 380 U.S. 909, 85 S.Ct. 891, 13 L.Ed.2d 796 (1965). Thus, even assuming a lack of impartiality by members of the Board, the availability of judicial review of the Board’s decision mandates our conclusion that Schneeman has not been denied due process.

We also note in this regard that Schneeman does not challenge the District Court’s determination that there was substantial credible evidence to support the determination of the Board. Her claims of bias at the agency level are irrelevant where the District Court independently determines there was substantial credible evidence to support the denial of benefits. See Cascade County Consumers Assoc.

We hold that the District Court did not err in refusing Schneeman’s request to conduct discovery and hold an evidentiary hearing.

II

Did the District Court deny Schneeman an opportunity to argue the merits of her petition for judicial review?

At the time she filed her petition, Schneeman did not file a brief on the merits of the issues contained therein. Nor did she file a brief in support of her claim that the Board’s decision was not supported by substantial credible evidence at any other time during the proceedings. Her only brief related to her request for discovery and an evidentiary hearing. The District Court’s Memorandum Order determined all of the issues before it. In addition to denying her request for discovery and an evidentiary hearing, the court determined, after an examination of the record, that substantial credible evidence existed to support the Board’s determination. Schneeman claims that the District Court denied her the opportunity to argue the merits of the various allegations contained in her petition because it ruled on those at the same time it ruled on her request for discovery and an evidentiary hearing, before she had the opportunity to brief the other issues.

We conclude that Schneeman’s claim fails for two reasons. First, she had ample opportunity to address the issues she raised. Schneeman filed her petition for judicial review on November 30, 1990. On February 4, 1991, the court issued a briefing schedule requiring Schneeman to file her brief in support of her petition by April 26,1991, with a response by the State due by May 17,1991, and her reply by May 28, 1991. Schneeman did not file her brief as ordered, but now asserts that failure was due to her attorney’s presence at the legislative session. However, she did not request a modification of the briefing schedule at any time although she had almost three months notice of the briefing deadlines. The State timely filed its brief in opposition to her petition pursuant to the court’s briefing schedule.

According to Schneeman, on June 3,1991, over a month after her initial brief was due, the court’s law clerk requested a brief on the issues of discovery and an evidentiary hearing. That brief was due by June 28, 1991, with the State’s brief due ten to twenty days later. Schneeman argues that this constituted a change in the original briefing schedule. However, nothing in the record indicates that Schneeman requested, or that the court anticipated or granted, a change in the original schedule.

During the ten months between the time the District Court issued its original briefing schedule and the time it entered its Memorandum Order, Schneeman neither requested a modification or extension of the original briefing schedule nor requested oral argument as specifically provided for in the briefing schedule. She cannot now complain that her failure to brief or argue is the court’s responsibility rather than her own.

Schneeman also appears to argue that the fact that she filed an amended petition after the court set the briefing schedule nullified the original schedule. This contention is without merit. The amended petition only identified her employer as a party. Her employer was not served with the amended petition nor did it appear before the District Court. The amended answer contained nothing new.

Schneeman’s claim that she was denied an opportunity to argue the merits of her petition also fails for another reason. She ultimately wanted the District Court to determine that substantial credible evidence did not exist to support the Board’s determination that she was not entitled to unemployment benefits. Schneeman appears to argue to this Court that she was waiting on the District Court’s ruling on her right to an evidentiary hearing before she submitted argument on this ultimate issue. However, her argument to the District Court on the issue of lack of record support for the Board’s determination did not hinge on anything she might discover; that issue was to be decided on the record made before the agency. Therefore, she could have presented her argument on this issue without delay. In any event, the District Court examined the record and determined that it contained sufficient evidence to support the Board’s decision. As noted above, Schneeman does not assert error in this regard.

We hold that the District Court did not deny Schneeman an opportunity to argue the merits of her petition for judicial review.

Affirmed.

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