author: MR. JUSTICE HARRISON MR. JUSTICE HUNT, MR. JUSTICE SHEEHY,

text:
    PATRICIA McNEEL, Appellant, v. HOLY ROSARY HOSPITAL and E.B.I./Orion Group, Inc., and Glacier General Assurance Co., Respondents.
    No. 87-052.
    Submitted on Briefs July 23, 1987.
    Decided Sept. 22, 1987.
    742 P.2d 1020.
    Kelleher Law Office, Robert C. Kelleher, Sr., Billings, for appellant.
    Mulroney, Delaney and Scott, P. Mars Scott, Missoula, James, Gray and McCafferty, Charles S. Lucero, Great Falls, for respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Workers’ Compensation Court. The appellant, Patricia McNeel, moved for the payment of attorney fees and expenses following the settlement of a work related injury. Pursuant to Section 39-71-611, MCA, the Workers’ Compensation Court denied the payment of attorney fees because the claim was not adjudged compensable. We affirm.

Patricia McNeel, claimant and appellant, was employed as a housekeeper by Holy Rosary Hospital in Miles City, Montana. While pulling heavy bags of garbage during a work shift on February 11, 1986, she suffered injury to her neck, back, and shoulder areas. McNeel was able to complete her work shift on that day as well as the following day. However, the injury later forced her to seek medical treatment. Subsequently, McNeel pursued a workers’ compensation claim and on April 30, 1986, McNeel’s attorney petitioned the Workers’ Compensation Court for an emergency hearing. Respondent, E.B.I. Companies (EBI), was the workers’ compensation carrier for McNeel’s employer on the date of the injury.

A liability dispute arose because McNeel previously sustained a similar work related injury on November 3, 1983. McNeel received medical permission to return to her regular employment on May 7, 1984. At the time of the previous injury, Glacier General Assurance Company (Glacier) was the workers’ compensation insurance carrier for McNeel’s employer. Glacier accepted liability for this prior injury and paid certain disability and medical benefits. Glacier denied liability for the injury occurring on February 11, 1986 on the basis that it was a new injury or an aggravation of a pre-existing injury which had achieved a medically stable condition. EBI denied liability as well and on the basis that any current injury was a result of the earlier injury and therefore a responsibility of the former carrier.

On May 22, 1986, EBI agreed to provisionally pay temporary total disability benefits and medical expenses. In doing so, EBI did not admit liability and reserved all defenses. After EBI agreed to pay these benefits on a nonacceptance basis, a June hearing date was postponed. A September hearing date was set, but was vacated to allow for continuing discovery. The hearing was then rescheduled for November. On the day before the hearing EBI advised McNeel’s counsel it would accept liability for the claim.

Following the above acceptance of liability, McNeel submitted a motion to the Workers’ Compensation Court to grant reasonable attorney fees and expenses. The motion was denied based on Section 39-71-611, MCA, and the fact that the claim was settled prior to the hearing and not adjudged compensable.

The issue presented on appeal is whether the Workers’ Compensation Court committed error in denying the motion for attorney fees and expenses when liability is admitted and settlement is achieved just prior to a hearing.

Appellant’s counsel contends that the payment of attorney fees and expenses is justified in this case for a variety of reasons. A significant amount of time and effort was devoted to preparing the case for a hearing. Settlement was not reached until EBI admitted liability on the day before the hearing at 5:00 p.m. or shortly thereafter. Due to the timing of the settlement, appellant’s counsel contends he was required to extensively prepare for the hearing. Additionally, there was preparation on two prior occasions, but the hearing was postponed on each occasion.

Appellant has a credible argument in that the payment of reasonable attorney fees and expenses would be equitable or fair. However, the applicable law simply does not allow for it. Generally, attorney fees are not recoverable without an agreement between the parties or some statutory authorization. Yearout v. Rainbow Painting (Mont. 1986), [222 Mont. 65,] 719 P.2d 1258, 1259, 43 St.Rep. 1063, 1064. The rule to be followed under the facts of this case is stated in Section 39-71-611, MCA:

“Costs and attorneys’ fees payable on denial of claim or termination of benefits later found compensable. In the event an insurer denies liability for a claim for compensation or terminates compensation benefits and the claim is later adjudged compensable by the workers’ compensation judge or on appeal, the insurer shall pay reasonable costs and attorneys’ fees as established by the workers’ compensation judge.”

The above section is specific and leaves no room for construction or interpretation. Appellant is not entitled to costs and attorney fees unless the insurer denies liability and the claim is later adjudged compensable. Under the facts presented, the claim was settled prior to the hearing and was therefore not adjudged compensable.

This decision is in conformity with prior decisions on this issue. In Yearout v. Rainbow Painting (Mont. 1986), [222 Mont. 65,] 719 P.2d 1258, 1259, 43 St.Rep. 1063, 1065, we stated:

“In this case, the statute authorizing attorney’s fees, Section 39-71-611, MCA, is clear and unambiguous. If an insurer denies liability for a claim for compensation, the insurer is liable for attorney’s fees if the claim is later adjudged compensable by the Workers’ Compensation judge. It is clear from the language of the statute that there must be an adjudication of compensability before an award of attorney’s fees is authorized.” (Emphasis in original.)

Likewise, the issue was addressed in Cosgrove v. Industrial Indemnity Co. (1976), 170 Mont. 249, 255, 552 P.2d 622, 625, wherein we stated:

“It is obvious that section 92-616 [the forerunner to Section 39-71-611, MCA] requires that the claim be ‘adjudged compensable, by the division or on appeal’ before the insurer can be required to pay attorney fees.
“We must rule on the law as it is and not what some may desire it to be.”

See also, Leikam v. Edson Express (Mont. 1987), [228 Mont. 66,] 740 P.2d 1130, 44 St.Rep. 1347; and, Lasar v. Oftedal and Sons (Mont. 1986), [222 Mont. 251,] 721 P.2d 352, 353, 43 St.Rep. 1239, 1240.

While we agree that appellant has presented an equitable argument for the payment of costs and attorney fees, we must follow the law as it is written. Arguments to the contrary must be presented to the legislature. The law as it is currently written allows for costs and attorney fees only after a claim has been adjudged compensable.

For the foregoing reasons, we affirm the order of the Workers’ Compensation Court.

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

MR. JUSTICE HUNT,

specially concurring:

I concur with the result in the majority opinion in light of the statutory language and controlling precedent. I wish to emphasize, however, that this is a particularly unfortunate and harsh result.

Section 39-71-611, MCA, must not become a weapon in the hands of the insurance companies operating in this state by forcing employees to incur the cost of trial preparation and then settling at or just before trial. See Leikam v. Edson Express (Mont. 1987), [228 Mont. 66,] 740 P.2d 1130, 44 St.Rep. 1347, 1350 (Sheehy, J., dissenting).

Under such circumstances an action for bad faith may lie. In Birkenbuel v. Montana State Comp. Ins. Fund (Mont. 1984), [212 Mont. 139,] 687 P.2d 700, 41 St.Rep. 1647, this Court held that independent actions against an insurer for bad faith are not barred by the exclusive nature of the Workers’ Compensation remedy. Birkenbuel, 687 P.2d at 703. See generally, Hayes v. Aetna Fire Underwriters (1980), 187 Mont. 148, 609 P.2d 257. Since the conduct complained of in third-party bad faith claims occurs outside the employment relationship and therefore is not compensated by the Workers’ Compensation scheme, it would be inequitable to preclude recovery for such intentional conduct. As we stated in Birkenbuel, “Any contrary interpretation would result in the inequity whereby workers surrendered more protection than they received when our statutory system of compensation was adopted.” Birkenbuel, 687 P.2d at 702. Insurers are under a duty to effectuate prompt and equitable settlement of claims in which liability is clear. Section 33-18-201(6), MCA; Gibson v. Western Fire Ins. Co. (Mont. 1984), [210 Mont. 267,] 682 P.2d 725, 730, 41 St.Rep. 1048, 1050. And where the duty is breached by actions intentionally meant to intimidate a claimant, he is entitled to a remedy outside the Workers’ Compensation scheme. Hayes, 609 P.2d at 262. Here, E.B.I. and Glacier General Assurance both denied liability from the beginning. This in itself is not evidence of bad faith but when coupled with the fact that E.B.I. settled, as appellant terms it, at the eleventh hour, thus avoiding attorney fees and expenses, the insurer’s good faith becomes less clear. In fairness to E.B.I. it must be pointed out as the majority has done, E.B.I. paid temporary total disability from May 22, 1986 to the claimant; but it also must be pointed out that the costs incurred by Patricia McNeel in pursuing her Workers’ Compensation claim were directly and proximately caused by E.B.I.’s delay in making a final decision that she was entitled to her benefits.

It is within the realm of the legislature to change this easily abused law but it is up to the individual claimants to seek alternative remedies.

MR. JUSTICE SHEEHY,

dissenting:

How long, oh how long, will this Court defer to the legislature to cure a practice of Workers’ Compensation insurers which forces employees to burden themselves with attorney fees to obtain their rightful compensation benefits?

There is really no need to defer to the legislature to end this cruelhearted practice. The Workers’ Compensation Court itself, could, upon receiving a stipulation from an insurer that agrees that a worker is entitled to benefits, adopt the stipulation and adjudicate the compensability. This Court could interpret a settlement arrived at in the Workers’ Compensation Court which provides for benefits but gives rise to a dismissal in that Court to be itself an adjudication entitling the worker to his attorney fees. The legislature never intended that an insurer, without penalty, could deny a worker his compensation benefits until just short of his trial to recover such benefits. The practice persists because we lack the will to stop it.

The number of cases on this point coming to us in recent times indicates how widespread the practice is. We can only guess the number of cases where attorney fees have been denied in similar circumstances and the denials have not been appealed. In just the last two years, we have had Yearout v. Rainbow Painting (Mont. 1986), [222 Mont. 65,] 719 P.2d 1258, 43 St.Rep. 1063 (Sheehy, J. dissenting); Lasar v. Oftedal and Sons (Mont. 1986), [222 Mont. 251,] 721 P.2d 352, 43 St.Rep. 1239 (Sheehy, J. not participating); Leikam v. Edson Express (Mont. 1987), [228 Mont. 66,] 740 P.2d 1130, 44 St.Rep. 1347 (Sheehy, J. dissenting); and now this case.

While I agree with Justice Hunt in his concurrence foregoing that an action for bad faith may well lie against insurers for this practice, such an action would not lie against State Compensation Insurance Fund. Birkenbuel v. Montana State Comp. Ins. Fund (Mont. 1984), [212 Mont. 139,] 687 P.2d 700, 41 St.Rep. 1647. One decision by this Court would stop this unjustified practice.


source: Caselaw Access Project

author: MR. JUSTICE HARRISON

license: Public Domain

text:
    In re the MARRIAGE OF HELEN MOUAT, Petitioner and Respondent, and DONALD MOUAT, Respondent and Appellant.
    No. 87-101.
    Submitted on Briefs Aug. 20, 1987.
    Decided Sept. 24, 1987.
    743 P.2d 602.
    Harris & Seidler, Linda L. Harris, Billings, for respondent and appellant.

      Michael M. Morse, Billings, for petitioner and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from a dissolution of marriage heard before the Honorable Alfred B. Coate in the Sixteenth Judicial District. The District Court directed the division of the marital estate by issuing findings of fact, conclusions of law, and an order dated November 25, 1986. Appellant, Donald Mouat, appeals the property division of the marital estate. The sole issue presented for review is whether the District Court committed error by failing to make specific findings of fact and conclusions of law considering the elements of Section 40-4-202, MCA, resulting in an abuse of discretion in distributing the marital estate. We affirm the decision of the District Court but remand for the correction of a minor error.

Donald and Helen Mouat were married in 1949 and had four children. All of the children have reached the age of majority.

At the time of dissolution, the marital estate included the following real property: (1) the Mouat farm, including a house; (2) an 80 acre pasture; (3) a country home; and (4) a home in Hysham, Montana. The farm was purchased from Donald Mouat’s parents in 1962. The farm was leased to another individual beginning in the mid 1970s. The house located in Hysham was purchased in approximately 1974 from Donald’s brother. Other major assets in the marital estate included livestock and a significant amount of machinery and equipment.

Helen Mouat has worked as a secretary for the Hysham Public School since 1973. Prior to that date, Helen devoted her efforts to raising the Mouat children, acting as housewife, and assisting with the farm operation. Donald spent the majority of his efforts maintaining and operating the family farm until the time it was leased. He has also worked in maintaining a dragline business. The record and the District Court’s findings of fact indicate both Helen and Donald made substantial contributions to the marital estate.

Following a hearing, the District Court issued findings of fact and conclusions of law dividing the marital estate. The major assets and liabilities were identified and valued. According to that valuation, the District Court distributed the marital estate so that Helen and Donald each effectively received approximately fifty percent of the total value of the estate. Specifically, finding of fact number 43 found that the marital estate should be divided in the following manner:

Respondent (Donald Mouat) Petitioner (Helen Mouat)
Farm land $67,981.00 Country home $31,200.00
80 acres grazing land 800.00 Town home 28.500.00
farm home 37.500.00 1964 Ford pickup 300.00
balance of machinery 14.300.00 Shasta trailer 500.00
1 herd bull 500.00 Sears riding mower 300.00
15 heifers with 8 32 cows with calves 18.400.00
calves 5,410.00 3 dry cows 1.050.00
$126,491.00 PERS Account 3.187.00
Less debt -23,902.79 $102,588.21 Petitioner’s bank account 300.00
$83,737.00
Less cash -10,043.11
$92,545.10 Plus cash 10,043.11 $93,780.11
Respondent’s bank account 1,235.00 $93,780.10

As indicated, Donald was ordered to pay $10,043.11 so as to create a division which would give each party roughly fifty percent of the value of the total estate. Donald appeals from this property division alleging the District Court failed to consider certain requirements of Section 40-4-202, MCA, and therefore abused its discretion.

The standard of review which must be implemented regarding an issue of this nature has been stated many times:

“In dividing property in a marriage dissolution the district court has far reaching discretion and its judgment will not be altered without a showing of clear abuse of discretion. The test of abuse of discretion is whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. In re Marriage of Vert (Mont. 1984), [210 Mont. 24,] 680 P.2d 587, 41 St.Rep. 895.”

In re the Marriage of Rolfe (Mont. 1985), [216 Mont. 39,] 699 P.2d 79, 83, 42 St.Rep. 623, 626. See also, In re the Marriage of Manus (Mont. 1987), [225 Mont. 457,] 733 P.2d 1275, 1278, 44 St.Rep. 398, 403; In re the Marriage of Tonne (Mont. 1987), [226 Mont. 1,] 733 P.2d 1280, 1282, 44 St.Rep. 411, 412-413; and In re the Marriage of Hundtoft (Mont. 1987), [225 Mont. 242,] 732 P.2d 401, 402, 44 St.Rep. 204, 205.

Section 40-4-202(1), MCA, states, in pertinent part, that:

“[T]he court shall consider the duration of the marriage and prior marriage of either party; antenuptial agreement of the parties; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties; custodial provisions; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assets and income.” (Emphasis added.)

Specifically, Donald Mouat asserts the District Court failed to consider nine items: (1) duration of the marriage; (2) health of the parties; (3) the occupation of Helen; (4) amount and sources of income; (5) actual skills of Donald; (6) employability of the parties; (7) opportunity for future acquisition of real property and assets; (8) source of marital property; and (9) needs of the parties.

We have considered similar claims on many past occasions. In distributing the marital estate, the district court must consider those factors explicitly set out in Section 40-4-202, MCA. In re the Marriage of Tomaskie (Mont. 1981), [_ Mont. _,] 625 P.2d 536, 38 St.Rep. 416, 418. Further, we have stated:

“This Court recognizes that the trial court must evidence the basis of its ultimate conclusion in the findings of fact. However, the statutory guidelines promulgated in 40-4-202, MCA, were not designed as requisite criteria to be individually itemized in every property distribution decree.”

In re the Marriage of Ziegler (Mont. 1985), [215 Mont. 208,] 696 P.2d 983, 987, 42 St.Rep. 298, 302.

Mont. 242,] 732 P.2d 401, 402, 44 St.Rep. 204, 205, 206, we stated:

“While articulation of these factors is encouraged, the absence of specific findings does not automatically warrant remand:
“ ‘It is not the lack of specific findings which constitutes reversible error, but the lack of substantial evidence to support the judgment. We look both to the District Court’s express reasoning and the evidence in the record to determine whether ample evidence exists.’
“In re the Marriage of Peterson (Mont. 1984), [211 Mont. 118,] 683 P.2d 1304, 1307, 41 St.Rep. 1252, 1256 (quoting Frazier v. Frazier (Mont. 1984), [208 Mont. 150,] 676 P.2d 217, 219-20, 41 St.Rep. 233, 236).”

The above cited cases dictate that while the district court must conscientiously consider all the elements of Section 40-4-202(1), MCA, it need not itemize and explain each separate element. With these rules in mind, we examine Donald’s contentions:

1. Duration of the marriage. This contention is without merit. The District Court made a specific finding regarding the date Donald and Helen were married. Donald also indicates here that Helen’s contribution to the marital estate during portions of their 37 years of marriage was less than substantial. However, there is substantial credible evidence demonstrating that both Helen and Donald contributed substantially to the marital estate.

2. Health of the parties. Here it is contended that there was no consideration of the health of either of the parties. This contention borders on frivolous. The findings of fact specifically address the health of both parties. These findings are made from evidence presented within the record.

3. Occupation of Helen. Donald contends the District Court placed little emphasis on Helen’s occupation and her future income. This contention is without merit since the findings made specific reference to Helen’s occupation and that both parties are severely limited in their employability outside their present occupations.

4. Amount and sources of income. Donald states his future income will be severely limited by the division. However, the record indicates the District Court considered other potential sources of income including the farm lease, cattle sales, dragline work, and future social security benefits.

5. Actual skills of Donald. Donald contends the District Court failed to consider that Helen has established an occupational skill, while he has few skills outside farming. No abuse of discretion exists regarding this contention since the District Court specifically eluded to the employability and present occupations of both Helen and Donald.

6. Employability of the parties. This contention tends to overlap with the previous three contentions. As stated above, there is no indication that the District Court failed to consider the employability, occupation or skills of either party.

7. Opportunity for future acquisitions of real property and assets. There is no evidence that either Helen or Donald will realize any particular advantage from the division regarding future acquisitions of real property and assets. Donald fails to demonstrate that this was not considered by the District Court or that an abuse of discretion was committed.

8. The source of the marital property. Donald states the source of the marital property was not properly considered after approximately 37 years of marriage. Donald contends the District Court failed to consider that the family farm and the Hysham home were both purchased from members of his family at a price which was below fair market value. However, finding of fact number 17 specifically notes that the farm and house were purchased and that both parties were to share equally in any benefits realized due to terms and conditions which might have been favorable. We find no evidence that the District Court failed to consider the source of the marital property.

9. Needs of the parties. No elaboration or explanation is offered as to the allegation that the District Court failed to consider the needs of the parties. This contention tends to overlap with several previous contentions. Since no abuse of discretion is demonstrated, we will not consider this contention further.

Finally, Donald contends that the District Court improperly accepted Helen’s offered appraisals, while denying his proposed appraisals. Donald’s contention centers on the value of the real property contained in the marital estate. Donald contends the correct total valuation of the real property is $153,250. Helen’s proposed appraisal set the value at $165,181 and was accepted by the District Court. At a hearing prior to the dissolution proceeding, the District Court suggested that both parties submit their appraisal reports by stipulation. The court indicated this would be more economical and suggested that each party could submit their objections based on each written appraisal. The District Court’s findings of fact state the parties did stipulate that the appraisals could be introduced into evidence without the necessity of calling each appraiser to testify. Donald contends he relied on the trial judge’s suggestion and submitted a written appraisal without supporting testimony from the appraiser. In contrast, Helen submitted a written appraisal with supporting testimony from the appraiser despite the stipulation that the testimony was not required. The trial judge preferred the appraisal presented by Helen and stated in the findings of fact that,

“[H]aving heard ample testimony concerning the qualifications, methods, and conclusions of [Helen’s appraiser], and having heard no such testimony as concerns Respondent’s appraisal, it is deemed appropriate to adopt the real property values set forth in [Helen’s appraisal].”

Donald argues that the court was inconsistent when it suggested that the written appraisals be simply admitted by stipulation and without supporting testimony, but then preferred Helen’s appraisal because it was supported with the appraiser’s testimony.

Although the course of events may have confused Donald’s counsel, both parties had the right to submit supporting testimony at the time of trial. Only Helen chose to do so and the trial court preferred her suggested appraisal because of that supporting testimony. There is substantial credible evidence supporting the valuations listed in the property distribution. Helen’s appraiser, Jack Chapman, testified as to the appraisal at the trial and was subject to cross examination. Mr. Chapman was a qualified appraiser and his testimony was supported by his extensive written appraisal which was introduced at trial. We find no evidence that the trial court acted arbitrarily without employment of conscientious judgment.

An additional reason why we choose to affirm the District Court’s finding is that the appraisals do not represent widely conflicting valuations. In In re the Marriage of Vance (1983), 204 Mont. 267, 664 P.2d 907, a house and forty acres of land was appraised at $160,000 by one litigant’s expert and $140,000 by the other litigant’s expert. The district court accepted the $160,000 appraisal without stating any specific reasons. This Court affirmed that decision because the valuations were not widely conflicting. Vance, 664 P.2d at 911. The same rationale should apply under these facts.

Donald also contends that his suggested appraisal should be preferred since it was completed only four months prior to trial, while Helen’s suggested appraisal was completed seven months prior to trial. While the timeliness of an appraisal is important, an appraisal will not be preferred solely because it was completed closest in time to the hearing. There is no evidence indicating that the trial court failed to consider the timing of each appraisal.

We do find what appears to be a typographical or inadvertent error. The District Court accepted Helen’s proposed appraisal, but valued the Mouat farm land at $67,981 and valued the total of the real property at $165,981. Helen’s appraisal valued the Mouat farm land at $67,181 and valued the total of the real property at $165,181. Therefore, it appears that the implemented valuation is $800 greater than that proposed by Helen. This inconsistency must be corrected and we remand for this purpose only. For the foregoing reasons, the remainder of the District Court decision is affirmed.

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


author: MR. JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROBERT BRADFORD, Defendant and Appellant.
    No. 87-176.
    Submitted on Briefs Aug. 6, 1987.
    Decided Sept. 29, 1987.
    743 P.2d 103.
    John Keith, Public Defender, Great Falls, for defendant and appellant.
    Mike Greely, Atty. Gen., Judy Browning, Asst. Atty. Gen., Helena, Patrick L. Paul, Co. Atty., Antonia Marra & Barbara Bell, Deputy Co. Attys., Great Falls, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Defendant, Mr. Bradford, pled guilty to six felony counts relating to sexual abuse of his daughters. In sentencing, the District Court for the Eighth Judicial District, Cascade County, relied upon the recommendations of a psychologist who examined Mr. Bradford. Mr. Bradford appeals. We affirm.

The issue is whether the District Court abused its discretion in refusing Mr. Bradford’s request for a second psychological evaluation.

Mr. Bradford was charged by information with sexual assault (3 counts), tampering with witnesses, tampering with physical evidence, and sexual intercourse without consent. On the date scheduled for trial, he pled guilty on all counts. In exchange for Mr. Bradford’s guilty pleas, the County Attorney’s office agreed to rely upon the sentencing recommendations of the Presentence Report and a psychologist’s evaluation, both of which would be prepared after entry of the plea.

Mr. Bradford was examined by Phillip Russell, Ph.D., of the Yellowstone Treatment Program in Billings, Montana. Dr. Russell’s report stated that “[i]n the examiner’s experience with over 500 cases of sexual abuse, this stands as a hallmark of perversity and degradation.” It also stated that Mr. Bradford exhibited almost no remorse for his acts and “is absolutely not amenable to treatment in an outpatient community based program.” Mr. Bradford was provided with a copy of the report prior to sentencing.

At the sentencing hearing, the defense moved for a continuance so that Mr. Bradford could obtain a second psychological evaluation at his own expense. The court denied the motion, and sentenced Mr. Bradford to 20 years on each of the sexual assault charges, 10 years on the charges of tampering with witnesses and evidence, and 30 years on the charge of sexual intercourse without consent, all to be served concurrently.

Did the District Court abuse its discretion in refusing Mr. Bradford’s request for a second psychological evaluation?

Mr. Bradford argues that because Dr. Russell’s report was extremely negative, the District Court abused its discretion when it refused to allow him to obtain another psychological report at his own expense. He also argues that Dr. Russell’s report is inherently prejudiced because Dr. Russell saw two of Mr. Bradford’s children prior to evaluating Mr. Bradford. His argument on the second point is sketchy, and we note that at the sentencing hearing the attorney for the State said that she believed the children were interviewed after, not before, Mr. Bradford.

Section 46-18-112, MCA, allows a mental examination to be included in a presentence investigation “when it is desirable in the opinion of the court:” That section leaves to the district court’s discretion the decisions on mental examinations for sentencing purposes. Mr. Bradford has shown nothing that would require a second mental examination in this case. Dr. Russell’s report contains extensive quotations from statements by Mr. Bradford’s daughters, which Dr. Russell aptly summarizes the statements as descriptions of pornographic sexual abuse spanning a period of approximately 14 years. That the report is highly unfavorable to Mr. Bradford is more a result of the horrifying statements of the children than of any comments by Dr. Russell. Mr. Bradford’s lack of remorse about the crimes with which he was charged was demonstrated in his statement to the District Court that “I firmly don’t believe that I am the terrible person the doctor portrays me to be, I really don’t.” The attitude conveyed in that statement when viewed in light of Mr. Bradford’s own admissions regarding the crimes abundantly supports Dr. Russell’s sentencing recommendation. Further, as the District Court noted, it was the defense which selected Dr. Russell to perform the psychological evaluation.

We conclude that it was within the District Court’s discretion to deny Mr. Bradford’s request for a second psychological evaluation. Affirmed.

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


author: MR. JUSTICE SHEEHY

text:
    RONALD J. MASTERS, Claimant and Appellant, v. DAVIS LOGGING, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 87-171.
    Submitted on Briefs July 23, 1987.
    Decided Oct. 1, 1987.
    743 P.2d 104.
    Bothe Law Firm, David W. Lauridsen, Columbia Falls, for claimant and appellant.
    Warden, Christiansen, Johnson & Berg, Gary R. Christiansen, Kalispell, for defendant and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Appellant, Ronald Masters, appeals a decision of the Workers’ Compensation Court denying his claim for benefits and reasonable costs and attorney’s fees. Appellant alleges the court erred in holding his claim barred for failure to notify the employer of his injury within 60 days. We affirm.

The issues presented on appeal are:

1. Whether there is substantial credible evidence to support the Workers’ Compensation Court’s decision that appellant’s claim for benefits is barred for failing to notify his employer as required by Section 39-71-603, MCA?

2. Whether the appellant is entitled to reasonable costs and attorney’s fees?

We find that the first issue is determinative.

Davis Logging was enrolled under compensation plan No. 3 of the Workers’ Compensation Act and was insured by the State Compensation Insurance Fund. Davis Logging was a small logging company owned and operated by Billy Joe and Linda Davis.

Masters has been a friend of the Davis’ family for 15 years. In May, 1985, Masters accepted employment as sawyer for Davis Logging in an area approximately 40 miles into the back country. He was injured while so employed.

On May 23, 1985, Masters was falling timber on a steep hillside. At that time, he encountered a tree with a large snag protruding from the main stalk of the tree. Masters ascended the hill to a point above the snag and began sawing it. While sawing, the snag detached from the tree and swung up the hill, striking Masters between the legs. The force of the impact hurled him up the hill approximately 15 to 20 feet, where he landed on his back.

Masters immediately felt numb from the waist down. He rose to his feet and examined himself. Masters’ feet were tingling and his legs were numb. He also suffered back pain, small cuts and scrapes. Masters returned to work after resting for ten minutes and discussing the accident with a co-employee who happened upon the scene.

The next morning, Masters was so stiff and sore he “[didn’t] know if he could make it.” He went to work anyway and continued working with pain until he ceased his employment with Davis Logging on June 22, 1985. At that time, Masters returned to the Libby area where he continued to work as a sawyer with Decker Logging until February, 1986.

Although Masters’ ability to work was impaired and the pain in his back progressively worsened, he did not immediately seek medical attention. In July, 1985, he began seeing a local chiropractor on a regular basis for back pain treatments. While the chiropractor took several x-rays, he failed to diagnose the injury. The chiropractic treatments continued without success until approximately January, 1986. At that time, Masters’ continued pain forced him to seek the assistance of his family physician, Dr. Brus. Dr. Brus referred him to a back specialist. Dr. Laidlaw, the back specialist, diagnosed a ruptured disk on March 27, 1986. Masters personally paid $3,500 for medical care to this point.

During the period that Masters continued to be employed by Davis Logging, Billy Joe Davis, the owner, was at the jobsite at least part of the time. Masters did not inform Davis of the injury. In addition, Masters was aware of the Davis’ location after he terminated his employment. Nevertheless, Davis was not notified of the injury until April 16, 1986, 11 months after the injury.

Masters explains his failure to notify his employer in two ways. At trial, he testified he “didn’t know the severity of [his] injury.” In his deposition, he states:

“. . . I had paid for everything out of my pocket which I wasn’t going to turn it in because Bill there, he is a real good personal friend of mine and I didn’t figure that I wanted to raise his insurance or cause any problems with Workman’s Comp so I was just going to pay for everything myself.”

There is no allegation or evidence that the employer did anything that in anyway impeded Masters’ ability to provide notice.

The Montana Workers’ Compensation Act provides a set of rules designed to effectuate a balance between the competing interests of workers and employers. Section 39-71-603, MCA, reflects the employer’s interest in prompt notification of claims. It provides:

“No claim to recover benefits under the Workers’ Compensation Act, for injuries not resulting in death, may be considered compensable unless, within 60 days after the occurrence of the accident which is claimed to have caused the injury, notice of the time and place where the accident occurred and the nature of the injury is given to the employer or the employer’s insurer by the injured employee or someone on the employee’s behalf. Actual knowledge of the accident and injury on the part of the employer or the employer’s managing agent or superintendent in charge of the work upon which the injured employee was engaged at the time of the injury is equivalent to notice.”

The provisions of the notice statute are “mandatory and compliance with its requirements is indispensable to the maintenance of a claim for compensation.” Bender v. Roundup Mining Company (1960), 138 Mont. 306, 309, 356 P.2d 469, 470. Hunt v. Sherwin Williams Company (1981), 624 P.2d 489, [38 St.Rep. 358,] Masters, by his own admission, failed to notify his employer within 60 days of his injury. He contends, however, that the notice requirement of Section 39-71-603, MCA, was satisfied because he notified his employer within 60 days of discovering the extent of his injury. We disagree.

In Bowerman v. Employment Security Division (Mont. 1983), [207 Mont. 314,] 673 P.2d 476, 40 St.Rep. 2062, we recognized that latent injuries presented a unique situation which often resulted in substantial injustice to the injured worker. In Bowerman, the claimant promptly notified his supervisor that he had fallen into a stairwell after slipping on a pencil. The injury to his back and head did not fully manifest itself until after the statute of limitation had run, however. An examination of the rationale behind the statute of limitation, Section 39-71-601, MCA, revealed that latent injuries are not the type of evil sought to be prevented.

“Statutes of limitation generally proceed on the theory that a man forfeits his rights only when he inexcusably delays assertion of them . . . But [with latent injuries] no amount of vigilance is of any help. The limitations period runs against a claim that has not yet matured; and when it matures it is already barred.”

673 P.2d at 478, 40 St.Rep. at 2065, citing 3 Larson, Workmen’s Compensation Law, Section 78.42(b) at 15-226. Consistent with principles of equity and the Court’s duty to liberally construe the provisions of the Workers’ Compensation Act, we held that the statutory period “does not begin to run until the claimant, as a reasonable [person], should recognize the nature, seriousness and probable, compensable character of his latent injury.” 673 P.2d at 479, 40 St.Rep. at 2065.

The Workers’ Compensation Court, in Hamilton v. Combustion Engineers, Inc., WCC No. 8307-2091, decided July 27, 1984, extended the Bowerman rationale to the notice provision of Section 39-71-603, MCA. Masters requests that this Court do likewise. Assuming we were inclined to do so, the facts of this case preclude the application of Bowerman, supra.

A review of the facts indicates that a reasonable person should have been aware that a serious injury had been sustained. Masters testified that he suffered pain which impaired his ability to work and that the pain progressively increased. The pain caused discomfort to the degree that Masters felt it was necessary to engage the services of a chiropractor on a regular basis. These facts do not indicate a latent injury.

Masters did not suffer minor or sporadic pain, however. It appears that he consciously chose to forego his rights under the Workers’ Compensation Act and shoulder the burden of the injury himself because of his friendship with his employer. Such a decision does not indicate a latent injury.

We therefore hold that the decision of the Workers’ Compensation Court is affirmed. We offer no opinion as to the applicability of the Bowerman, supra, rationale to the notice provision of Section 39-71-603, MCA.

MR. JUSTICES WEBER, GULBRANDSON, HUNT and McDONOUGH concur.


author: MR. CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DALE STATCZAR, Defendant and Appellant.
    No. 85-550.
    Submitted June 10, 1987.
    Decided Decided Oct. 6, 1987.
    743 P.2d 606.

      William Boggs argued, Ferguson & Mitchell, Paulette C. Ferguson, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Kimberly Kradolfer argued, Asst. Atty. Gen., Helena, Roberts Deschamps, III, Co. Atty., Missoula, Karen Townsend argued, Deputy Co. Atty., for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Defendant Dale Statczar appeals his conviction for sexual intercourse without consent. Defendant was charged by information on November 18, 1983. In January 1984, defendant was found unfit to proceed to trial in a competency hearing held pursuant to Section 46-14-221, MCA. Following a second competency hearing in September 1984, the court reversed its earlier decision and found defendant Statczar fit to proceed to trial. Defendant’s first trial in April, 1985 resulted in a hung jury. Defendant was convicted following his second trial in May and June, 1985. He was sentenced to twenty years in the Montana State Prison with fifteen years suspended.

We reverse.

Ten issues are presented for our review. Because we are reversing defendant’s conviction, we limit our review to the following issues:

(1) Did the District Court err when it permitted the defendant’s former attorney, John Riddiough, to testify at trial?

(2) Did the District Court violate defendant’s right against self-incrimination when it permitted the State to call Dr. William Stratford to testify against defendant?

(3) Does substantial evidence support the District Court’s determination that defendant was fit to proceed to trial?

(4) Did the District Court err when it denied defendant’s motion for a mistrial based on alleged improper prosecutorial comments during closing argument?

The victim, J. R., testified as follows. In the early morning hours of October 16, 1983, she was attacked by two men outside a Circle K store located on Russell and Longstaff Streets in Missoula. Moments prior to the attack, J.R. made a phone call to her boyfriend, Lane Cunningham. J.R. and Cunningham argued during the telephone conversation. Cunningham eventually hung up on J.R.. While J.R. was redialing Cunningham’s phone number, the defendant approached her and asked if he could borrow some cigarettes. J.R. refused. After Cunningham hung up on J.R. a second time, she walked to her car for money for additional phone calls and more cigarettes. J.R.’s car was parked beside the Circle K store. As J.R. approached her car, two men grabbed her from behind and dragged her to another vehicle. She recognized one of her assailants as the man who had earlier asked for cigarettes.

After J.R. was dragged to the other vehicle, one of her assailants held her down, while the defendant moved on top of her. J.R. stated she was raped with an artificial device, “a penis that wasn’t real.” She also testified that the artificial penis was shoved into her mouth and she described biting it and causing no reaction in the defendant. J.R. was able to determine that defendant was wearing “some sort of bag” along his thigh. Finally, J.R. testified the defendant inserted several smooth stones in her vagina after defendant’s accomplice asked if “he’d gotten his rocks off yet.” J.R. was further assaulted and threatened by the two men before being pushed from the car. Testimony at trial established the above-mentioned attack took place between 2:30-3:00 a.m., with the most likely time of attack at 2:45 a.m.

At 3:14 a.m., 911 received a call from a woman who requested to remain anonymous, stating that she witnessed, approximately one-half hour previously, a rape or its aftermath at the Circle K store on Grant Avenue and South Avenue. The anonymous caller stated the victim had left the crime scene in a car. The caller further stated that she followed the victim to 14th Street, where the victim parked her car and disappeared on foot. The informant stated she stopped, looked in the car, and found a purse containing a slip of paper with two telephone numbers. She recited the numbers to the 911 operator. The telephone numbers belonged to Lane Cunningham and Delores Remo. In response to the call, a patrol car was dispatched to the Circle K at Grant Avenue and South Avenue. The officers found no evidence of a disturbance.

At 4:35 a.m., J.R. placed a call to 911. She reported that she was attacked after making a phone call at the Circle K store on Grant Avenue and South Avenue. Missoula City Police Officer Don Millhouse responded to J.R.’s call at 4:54 a.m. J.R. reported to Millhouse that she had “recovered” her car and purse. J.R. then changed her statement and told Officer Millhouse she was attacked near another Circle K store at Russell and Longstaff.

J.R. was taken to St. Patrick’s Hospital. She was examined by emergency room personnel. J.R. had scratches around the chest, abdomen, and breasts and dirt around the perineal area, and “five roundish stones in the vagina, ranging in size from a quarter of one inch to two inches.”

Later that afternoon J.R. told Detective Pete Lawrenson that her assailant was a white male, twenty-five to thirty years of age, 5’6” to 5’8” in height, with bushy sideburns and a mustache. She also stated that he had a plastic-like bag attached to his leg. She described the assailant’s vehicle as a dark colored “car-like truck.” The assailant was wearing a dark jacket with something silver, perhaps buttons, on the shoulder.

Detective Lawrenson contacted each Missoula urologist for information concerning a person matching this description. Dr. Bryan Olson responded that defendant Dale Statczar matched the above-mentioned description.

Detective Lawrenson presented J.R. with a six-person photo lineup including Statczar’s photograph. J.R. identified defendant Statczar as her assailant.

Defendant was arrested eighteen days after the crime, on November 3, 1983. A dark blue Chevrolet “El Camino” belonging to defendant Statczar’s brother was found outside defendant’s home. Law enforcement personnel did not conduct a forensic test of the vehicle’s interior. A search warrant for defendant’s residence led to the State of seizure of a dark jacket with silver buttons and a plastic syringe which the defendant used for maintenance of his urine bag.

Defendant Statczar, at the time of his arrest, was twenty-three years old. When Statczar was nineteen years old, he was involved in a motorcycle accident leaving him impotent, without urinary function and with a stiff and disfigured left leg. Statczar spent approximately one and one-half years at St. Patrick’s Hospital in Missoula recovering from his injuries. Testimony revealed that prior to his motorcycle accident Statczar possessed severe learning disabilities.

Statczar was sent on November 3, 1983, to the Montana State Hospital at Warm Springs for evaluation of his fitness to proceed. On January 18, 1984, following examination by Dr. Harry Xanthopoulos, chief psychiatrist at the Montana State Hospital, and Dr. Roy Hamlin, psychologist, the court found defendant unfit to proceed to trial.

A second competency hearing was held on September 14, 1984. Dr. William Stratford testified for the State. Dr. Xanthopoulos and defendant’s attorney John Riddiough testified for defendant. The court found defendant competent and fit to proceed.

A three-week trial, -held in April, 1985, resulted in a hung jury. A second trial, held from May 21 to June 5, 1985, resulted in defendant’s conviction.

Issue 1

Did the District Court err when it permitted defendant’s attorney, John Riddiough, to testify at trial?

During the September 14, 1984, competency hearing, defendant’s second court-appointed attorney, John Riddiough, called himself to the witness stand. Riddiough testified in narrative form that he had great difficulty communicating with defendant Statczar. Riddiough stated that defendant had told him three different alibis concerning his whereabouts during the night and early morning hours of October 15 and 16, 1983. Riddiough testified, “Statczar related to me that he had little or no recollections of giving the previous stories . . .” Riddiough also testified that Statczar did not appreciate the significance of the varying alibi stories:

“My impression was that he believed wholeheartedly in the story that he had given me. My impression was that he was not giving me a story to attempt to come up with a better alibi as it were. He gave me the impression that, frankly, he seemed surprised when I confronted him with the previous alibi stories.”

During Riddiough’s testimony, Statczar remained seated at defense counsel’s table. Defendant was not called to testify and did not object to Riddiough’s testimony.

During the second competency hearing on September 14, 1984, Dr. Xanthopoulos and Dr. Hamlin testified that Statczar was suffering from organic personality syndrome, that he had an IQ of 75, and that he was functioning at a “borderline level.” When asked what a judge’s role is at trial, Statczar responded, “The judge is to wear a black robe and sit in front of the courtroom.”

Riddiough withdrew as defense counsel following the District Court’s finding that defendant was competent to stand trial. Riddiough was subsequently called to testify for the State. At trial, Riddiough testified that defendant had given three different statements concerning his whereabouts on the night and early morning of October 15 and 16, 1983. Riddiough testified that defendant made the following inconsistent statements: (1) that defendant went to a movie with his brother and sister-in-law in Missoula and (2) that he went to a birthday party with relatives in Ronan, and (3) that he stayed home alone in Charlo. During closing arguments, the State referred to Riddiough’s testimony and argued that defendant had “lied” to his own attorney.

At trial, Riddiough was limited by the court to testifying that he had been defendant’s court-appointed counsel and that defendant had made the above-mentioned inconsistent statements. The court prohibited defense counsel from asking, and Riddiough from responding to, questions which defendant contends would explain his inconsistent statements. The court prohibited Riddiough from testifying that his interviews with defendant took place in Warm Springs State Hospital, that Riddiough felt defendant was mentally deficient and unable to comprehend the proceedings and that Riddiough did not believe defendant was lying.

Defendant contends that Riddiough’s testimony at the second competency hearing constituted a breach of his attorney-client privilege. The attorney-client privilege is defined in Section 26-1-803, MCA:

“An attorney cannot, without the consent of his client, be examined as to any communication made by his client to him or his advice given thereon in the course of his professional employment.”

A careful review of the record reveals that defense counsel Riddiough violated his confidential relationship with his client, Dale Statczar, when he offered testimony of Statczar’s conflicting alibi statements. At the September 14, 1984, competency hearing, Riddiough called himself to the witness stand and stated: “I’m making this statement — because it is a breach of the attorney-client privilege — because I feel it is necessary to make this statement.” Section 26-1-803, MCA, provides that an attorney cannot be examined regarding confidential communications made in the course of employment “without the consent of his client.” Accordingly, only the client can waive the privilege. State v. Iwakiri (1984), 106 Idaho 618, 621, 682 P.2d 571, 574. We find no evidence that defendant Statczar consented to Riddiough’s voluntary disclosure of defendant’s confidential statements.

The State contends that, by failing to object to Riddiough’s testimony, defendant waived the attorney-client privilege. A client may waive the attorney-client privilege:

“If the client elicits testimony from the lawyer-witness as to privileged communications this obviously would waive as to all consultations relating to the same subject, just as the client’s own testimony would.”

McCormick, Evidence Section 93 at 225.

Defendant claims that he did not waive his attorney-client privilege. Waiver is defined as the intentional or voluntary relinquishment of a known right or conduct which implies relinquishment of a known right. Kuiper v. District Court (1981), 632 P.2d 694, 698, 38 St.Rep. 1288. The burden of establishing waiver of the privilege is on the party seeking to overcome the privilege. Miller v. Dis. Ct. City and Cty of Denver (Colo. 1987), 737 P.2d 834, 838. Two elements must be considered when a court reviews the waiver of an attorney-client privilege: (1) the element of a client’s implied intention and (2) the element of fairness and consistency. See, 8 Wigmore, Evidence Section 2327 at 636; State v. Balkin (1987), 48 Wash.App. 1, 737 P.2d 1035, 1037.

An implied waiver must be supported by evidence showing that defendant, by words or by conduct, has impliedly forsaken his privilege of confidentiality with respect to the communication in question. Miller v. Dis. Ct., City and Cty of Denver, 737 P.2d at 838. The State has not provided this Court with evidence that defendant intended to waive his attorney-client privilege. Defendant did not testify in either competency hearing or in either trial. Defendant was not asked whether he waived his attorney-client privilege for the competency hearing or for all further judicial proceedings.

The second part of Wigmore’s waiver test concerns consistency and fairness. We note that defendant Statczar had no prior contact with the judicial system. Given defendant’s mental capacity and unfamiliarity with courtroom procedure, we hold it is inherently unfair to require the defendant, under the specific facts before us, to object to his attorney’s testimony at the competency hearing in order to prevent his confidential statements from being used against him at trial. We note that at trial, defendant’s newly court-appointed counsel strenuously objected to Riddiough’s testimony.

We hold the following factors prejudiced defendant’s right to a fair trial: (1) Riddiough’s testimony of defendant Statczar’s inconsistent statements was extremely prejudicial with limited probative value. Rule 403, M.R.Evid. (2) The State presented no evidence that Statczar intended to waive his right not to divulge this privileged information. (3) Defendant’s right against self-incrimination need not be surrendered in order to assert a statutory right. Section 46-14-103, MCA; Simmons v. United States (1968), 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247, 1259. We hold that fairness and consistency coupled with the lack of evidence that defendant intended to waive the privilege requires us to reverse defendant’s conviction.

Issue 2

Did the District Court violate defendant’s right against self-incrimination when it permitted the State to call Dr. William Stratford to testify against defendant?

Defendant claims that his right against self-incrimination was violated when the court permitted the State to call Dr. William Stratford on rebuttal and allowed him to testify to statements made by defendant. The testimony in issue concerns defendant’s recollection of events and defendant’s factual understanding of the case. Stratford examined defendant on June 28, 1984, and on September 13, 1984. The State called Stratford to testify at defendant’s second competency hearing on September 14, 1984, and at both of defendant’s trials.

Article II, Section 26, 1972 Mont. Const., provides in pertinent part: “No person shall be compelled to testify against himself in a criminal proceeding.”

At defendant’s second trial, Dr. Stratford testified:

“Q. (By Ms. Townsend) What was he able to tell you, Doctor, with reference to [defendant’s] knowledge of some of the kinds of evidence that had been collected in this investigation?
“Mr. Boggs: Objection, Hearsay, irrelevant.
“The Court: Overruled.
“A. [Defendant’s] understanding, that is, what he portrayed to me, I can tell you. Whether it was truthful or not, of course, is for the jury to decide.
“A. Okay. [Defendant] indicated there were particular kinds of automobiles, or a type of automobile involved. He indicated there was a particular kind of jacket that may be involved by the person who did this, that the individual involved had a colostomy bag, that there was a particular timing sequence, and that there will be a lineup, not a physical line-up, but as he referred to it, a photographic line-up. These were some of the factors that he indicated.”

In its closing argument, the State referred to Stratford’s testimony that defendant had knowledge of important and incriminating evidence.

Section 46-14-401, MCA, provides in pertinent part:

“A statement made for the purpose of psychiatric examination or treatment provided for in this chapter by a person subjected to such examination or treatment is not admissible in evidence against him in any criminal proceeding ... on any issue other than that of his mental condition. It is admissible on the issue of his mental condition, whether or not it would otherwise be considered a privileged communication, unless it constitutes an admission of guilt of the crime charged.” [Emphasis added.]

Earlier we held that a defendant’s admissions and confessions, when made as a privileged communication to a psychiatrist, are protected and therefore inadmissible. State v. Clark (Mont. 1984), [209 Mont. 473,] 682 P.2d 1339, 1352, 41 St.Rep. 833, 848. At trial, Dr. Stratford was permitted to testify that defendant’s mental capacity enabled him to recall certain elements of the State’s case against the defendant. Stratford’s testimony is generally admissible because defendant has placed his mental condition at issue. However, Stratford’s testimony of defendant’s recall of the incriminating evidence (automobile, jacket, colostomy bag) comes dangerously close to violating defendant’s right against self-incrimination. See, Section 46-14-401, MCA, and Article II, Section 26, 1972 Mont. Const.

Since we are reversing defendant’s conviction due to a violation of defendant’s attorney-client privilege, we are not required to decide this issue. However, we caution the District Court to refrain from admitting evidence of defendant’s mental condition which implies or constitutes an admission of guilt of the crime charged. Section 46-14-401, MCA.

Issue 3

Does substantial evidence support the District Court’s determination that defendant was mentally competent to proceed to trial?

Defendant contends the District Court abused its discretion when it determined defendant was fit to proceed to trial. Fitness to proceed is defined as:

“The test [is] whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as a factual understanding of the proceedings against him.”

State v. Austad (1981), 197 Mont. 70, 78, 641 P.2d 1373, 1378, citing Dusky v. United States (1960), 362 U.S. 402, 403, 80 S.Ct. 788, 789, 4 L.Ed.2d 824, 825.

Section 46-14-103, MCA, provides:

No person who, as a result of mental disease or defect, is unable to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as such incapacity endures.” [Emphasis added.]

Defendant contends “eyewitness identification, alibi and statements attributed to the defendant comprised the core of the [State’s] case.” In Austad, 197 Mont. at 79, 641 P.2d at 1378, we held that if physical evidence comprises the core of the State’s case, defendant’s fitness to proceed might hamper “preparation and preservation of the defense.” Therefore, defendant argues his defense was clearly hindered by his lack of fitness to assist and prepare his defense. Defendant cites testimony of John Riddiough, Dr. Henry Xanthopoulos, Dr. Roy Hamlin and Dr. William Stratford.

At the second competency hearing on September 14, 1984, Dr. Stratford testified in detail about his methods of evaluation and basis for his determination that defendant was fit to proceed to trial. Dr. Stratford reviewed the allegations made against the defendant, police reports concerning the nature of the crime charged, information he had received from the Montana State Hospital at Warm Springs and hospital record from St. Patrick’s Hospital regarding defendant’s motorcycle accident. Dr. Stratford concluded that defendant Statczar was capable of understanding the proceedings against him and of assisting in his own defense.

Dr. Xanthopoulos testified at the second competency hearing that defendant suifers from a “serious mental defect, Organic Personality Syndrome.” He also testified that defendant may have suffered brain damage following his motorcycle accident in 1979 and stated that defendant performs at a “borderline level” of intelligence. Dr. Hamlin’s testimony closely followed the testimony of Dr. Xanthopoulos.

As stated earlier, John Riddiough, defendant’s court-appointed attorney offered testimony that defendant was unable to understand the judicial proceedings. As evidence of defendant’s mental incompetency, Riddiough also testified that defendant had given three inconsistent alibi statements.

Fitness to proceed to trial is a matter largely within the discretion of the District Court. Sections 46-14-202 through -222, MCA. Therefore, we will not overturn a decision of the District Court in the absence of a clear abuse of discretion. The evidence may conflict, but it is substantial if any reasonable trier of fact could rely upon the evidence in support of its conclusion. State v. Hall (1983), 203 Mont. 529, 533, 662 P.2d 1306, 1308.

At the second competency hearing the State and defendant presented conflicting evidence of Statczar’s fitness to proceed. The District Court heard the evidence and chose to adopt the State’s position. The record reveals that substantial credible evidence supports the finding of the District Court. Accordingly, we hold the District Court properly determined that defendant was fit to proceed to trial. Section 46-14-103, MCA.

Issue 4

Did the District Court err when it denied defendant’s motion for a mistrial based on improper prosecutorial comments during closing argument?

Following the State’s closing arguments defendant moved for a mistrial alleging prosecutorial misconduct. The District Court denied defendant’s motion. During closing argument the State argued that its office was too busy to prosecute innocent persons: “We don’t have to do that, ladies and gentlemen. We do have 1,450 cases a year in the county attorney’s office. We don’t have time to spend chasing people that we believe are innocent or [have time] to frame people.”

We disapproved an attorney’s assertion of a personal opinion in State v. Armstrong (1980), 189 Mont. 407, 427, 616 P.2d 341, 352. Because defendant has not provided this Court with evidence of undue prejudice, we hold the District Court properly denied defendant’s motion for a new trial. However, we caution the State to refrain from utilizing the above-mentioned trial tactic.

We reverse defendant’s conviction and remand to the District Court for further proceedings.

MR. JUSTICES HARRISON, SHEEHY, WEBER, HUNT, GULBRANDSON and McDONOUGH concur.


text:
    In re the MARRIAGE OF LARRY D. JACOBSON, Petitioner and Appellant, and ROBIN RAE JACOBSON, Respondent and Respondent.
    No. 86-477.
    Submitted on Briefs June 25, 1987.
    Decided Oct. 6, 1987.
    Rehearing Denied Nov. 3, 1987.
    743 P.2d 1025.

      Judith A. Loring, Stevensville, Richard J. Andriolo, Scully, Lilly, Andriolo and Schraudner, Bozeman, for petitioner and appellant.
    K. Dale Schwanke, Jardine, Stephenson, Blewett and Weaver, Great Falls, for respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Petitioner Larry D. Jacobson appeals a September 12, 1986, order of the Eighth Judicial District Court, Cascade County. The court awarded sole custody and $300 per month child support to Robin Rae Jacobson. We affirm.

Appellant Larry presents the following issues for our review:

1. Did the District Court abuse its discretion in granting sole custody to Robin?

2. Did the District Court abuse its discretion in setting child support at $300 per month?

3. Did the District Court abuse its discretion in establishing the visitation by Larry at one week every three months?

4. Did the District Court abuse its discretion in establishing the visitation by the paternal grandparents?

5. Did the District Court err in failing to hold Robin in contempt of court for disturbing Larry’s visitation?

6. Did the District Court err in denying discovery of Robin’s medical records?

7. Did the five-month period between trial and decree cause substantial prejudice to Larry?

8. Does substantial evidence support the District Court’s order?

Respondent Robin cross-appeals with a single issue:

9. Did the District Court err in failing to award attorney fees to Robin?

Larry and Robin Jacobson were married in Great Falls, Montana, on January 2, 1982. One child, Lexi, was born of the marriage on January 21, 1984. Two months later, Larry petitioned for dissolution.

Following settlement attempts and continuances the District Court awarded temporary custody and child support to Robin on August 1, 1985. In February 1986, Larry petitioned the Supreme Court for a writ of supervisory control on a custody issue. We dismissed the petition without prejudice. The hearing on the present issues was completed on April 4, 1986. The District Court filed its decree on September 12, 1986, and Larry appeals.

Issue 1. Custody.

The District Court awarded sole custody to Robin, subject to reasonable visitation by Larry. Larry contends that the court did not consider all of the child’s “best interests” factors of Section 40-4-212, MCA.

In reviewing custody issues, we first determine if the factors of Section 40-4-212, MCA, were considered by the District Court in its findings. If properly considered by the court, the appellant must show both a clear preponderance of evidence against the findings and an abuse of discretion in the court’s conclusions. In Re Marriage of Manus (Mont. 1987), [225 Mont. 457,] 733 P.2d 1275, 1276, 44 St.Rep. 398, 400.

The court issued nine findings relating to the custody issue. The court cited Robin’s remarriage into a stable family environment, Robin’s continuous custody of Lexi, Larry’s sporadic visits, Larry’s home environment, and Lexi’s attitude toward each parent. The court touched upon all five factors of Section 40-4-212, MCA. The record supports the court’s findings and we see no abuse of discretion in its conclusions.

Larry further contends that joint custody is presumptively in the best interests of the child. Larry argues that joint custody is necessary because Robin has deprived Larry of adequate visitation.

Under Section 40-4-223, MCA, joint custody is presumed to be in the child’s best interests, unless the court finds under Section 40-4-212, MCA, that joint custody is not in the child’s best interests. If joint custody is not awarded, the court shall state the reasons in its decision.

The District Court specifically addressed the issue of joint custody. The court found that the parents were unable to communicate about Lexi, that Larry was inflexible, that Lexi had adjusted to Robin’s home environment and that Lexi’s interests were best served with sole custody to Robin. We have repeatedly recognized the propriety of a District Court’s refusal to implement joint custody when such an award would not be in the best interest of the child. Manus, 733 P.2d at 1277.

Larry has failed to overcome the presumption that the District Court’s judgment is correct. Parental cooperation is a key factor in an award of joint custody. The District Court saw no cooperation. Absent an abuse discretion, we will not disturb its decision.

Issue 2. Child Support.

The District Court ordered Larry to pay. $300 per month child support and medical expenses. Larry contends that the court did not follow the formula of In Re Marriage of Carlson (Mont. 1984), [214 Mont. 209,] 693 P.2d 496, 500, 41 St.Rep. 2419, 2423. Larry argues that the support payments are excessive.

On appellate review, we will not overturn an award of child support unless there has been a clear abuse of discretion resulting in substantial injustice. In Re Marriage of Tonne (Mont. 1987), [226 Mont. 1,] 733 P.2d 1280, 1285, 44 St.Rep. 411, 416.

In determining child support, the District Court must consider the needs of the child and the financial resources of the parents. Section 40-4-204, MCA. In Carlson, we adopted an algebraic formula Marriage of Jacobson to calculate the amount of child support. However, we plainly stated that the Carlson formula is a guideline and not mandatory. Carlson, 693 P.2d at 499. Although the formula is recommended, the court can fashion support orders to fit the exigencies of the case. In Re Marriage of Goodman (Mont. 1986), [222 Mont. 446,] 723 P.2d 219, 222, 43 St.Rep. 1410, 1415.

In eight findings, the District Court evaluated Lexi’s needs and the ability of her parents to pay support. The court specifically stated why it did not apply the Carlson formula. The court found that Robin’s net pay is $738 per month, that Robin has expenditures of $993 per month, that Larry could earn $13.00 per hour as a construction worker and that Larry can meet his expenses while paying the support. The District Court noted: “Larry Jacobson has apparently chosen a lifestyle which may have resulted in him earning less money than he is capable of earning.”

If a parent chooses a lifestyle that results in diminished ability to pay child support, the court may consider that factor in establishing support payments. In Re Marriage of Rome (Mont. 1981), [190 Mont. 495,] 621 P.2d 1090, 1092, 38 St.Rep. 50, 52. The record upholds the court’s findings. We find neither abuse of discretion nor substantial injustice in the court’s conclusion.

Issue 3. Visitation by noncustodial father.

The court awarded visitation to Larry for one week every three months plus holidays and Lexi’s birthday. Larry contends that the visitation is unreasonable and that Lexi’s interests are best served by seeing Larry more frequently.

Our review of this issue is guided by Section 40-4-217(1), MCA, which states that the noncustodial parent is entitled to reasonable visitation rights unless the visitation would seriously endanger the child’s physical, mental, moral or emotional health.

The District Court noted that Lexi appears to suffer some emotional problems as a result of visitations with Larry, and was concerned about Larry’s potential for chemical abuse. The court also found that Lexi suffered a physical injury as a result of Larry’s carelessness.

The District Court’s visitation schedule was born of concern for Lexi’s health. Larry’s visitations were not precluded but merely limited. Visitation rights should be arranged to suit the best interests of the child and not the parents. The District Courts possess wide latitude in determining visitation, having heard the testimony and observed the demeanor of the parties. In light of the evidence, we find that the visitation provisions are reasonable and proper.

Issue 4. Visitation by paternal grandparents.

The court allowed the paternal grandparents to visit Lexi when she is visiting Larry, and also at such times as are agreeable between them and Robin. Larry contends the visitation is not reasonable and that Lexi has been denied access to the other half of her extended family without justification.

We review this issue under the provisions of Section 40-4-217(2], MCA, which states that a District Court may grant reasonable visitation rights to a grandparent if such visitation is in the child’s best interests.

The paternal grandparents requested four weeks of visitation per year with Lexi. The District Court found that their request was not consistent with their infrequent prior contact with Lexi. However, the court granted them four total weeks per year plus holidays. The grandparents also have the opportunity for additional visitation, conditioned on Robin’s approval. Such a schedule is reasonable and provides adequate access to Lexi. We find no merit in Larry’s contention.

Issue 5. Contempt of Court.

Larry moved that Robin be held in contempt for denying visitation to Larry on several occasions. The court rejected the motion, finding that Robin’s denials were based on a concern for Lexi’s health and not on a desire to restrict Larry’s access to Lexi.

Contempt of court is a discretionary tool of the court to enforce compliance with its decisions. The power to inflict punishment by contempt is necessary to preserve the dignity and authority of the court. In Re Marriage of O’Neill (1979), 184 Mont. 415, 417, 603 P.2d 257, 258. The District Court obviously felt no such need in this case and properly denied Larry’s request.

Issue 6. Motion to Compel Discovery.

Larry moved to compel discovery of some of Robin’s medical records, as relevant to Robin’s fitness as a parent. The records concerned the hospitalization of Robin for a single alcohol-related incident during college. The lower court reviewed the material in camera and denied the motion, stating that the records were too remote in time to be relevant.

Larry has not shown that the ruling prejudiced his case, or that the incident bore significantly on Robin’s fitness. On the contrary, the record repeatedly points to Robin’s fitness as a parent. The denial of the motion lies squarely within the District Court’s discretion, and we find that its decision was proper.

Issue 7. Procedural Delay.

Larry contends that a recess of three months during the hearing resulted in the absence of one of his medical experts and thus prejudiced his case.

We note, however, the District Court specifically acknowledged that it would allow other witnesses to testify when the trial reconvened, but did not want any “surprise witnesses.” When the trial reconvened on March 31, 1986, Larry never called his medical witness. Furthermore, Larry never gave Robin notice of his intention to call the witness. We find no error by the court in Larry’s trial decisions.

Larry further contends that the five-month period from the hearing until the decree prejudiced him because the court lost its “hands on” feel for the case. Larry asserts that the court adopted Robin’s proposed findings virtually verbatim and thereby failed to exercise independent judgment.

The standard of review of findings made by a District Court is the same whether the District Court prepared the findings or adopted a party’s proposed findings. In Re Marriage of LeProwse (1982), 198 Mont. 357, 646 P.2d 526, 529, 39 St.Rep. 1053, 1056. Error occurs only when the proposed findings are relied upon to the exclusion of proper consideration of the facts and the failure to exercise independent judgment. In Re Marriage of Hunter (1982), 196 Mont. 235, 639 P.2d 489, 495, 39 St.Rep. 59, 67.

Robin proposed thirty-one findings covering nineteen pages, with each finding supported by the record. She proposed nine conclusions covering two pages. Her proposals were reasonable and thorough. The District Court can adopt a party’s proposed findings of fact and conclusions of law if they are sufficiently comprehensive and pertinent to the issues to provide a basis for a decision and are supported by the evidence. Kowis v. Kowis (1983), 202 Mont. 371, 658 P.2d 1084, 1088, 40 St.Rep. 149, 154.

The District Court substantially adopted Robin’s proposed findings and conclusions, but not verbatim. The court properly considered the evidence and differed on four findings. The court also differed significantly on four conclusions of law; giving Larry the mobile home, giving Larry the income tax deduction for Lexi, and refusing to grant attorney fees to Robin. These changes favored Larry. As adopted, the District Court’s findings were comprehensive and its conclusions were reasonable. We find that the District Court exercised independent judgment and properly balanced the interests of all parties.

Issue 8. Substantial Evidence.

Larry contends that the findings are not supported by substantial evidence. In order to prevail on this issue, Larry must show a clear preponderance of evidence against the findings and must overcome the presumption that the judgment of the trial court is correct. Bier v. Sherrard (Mont. 1981), [_ Mont. _,] 623 P.2d 550, 551, 38 St.Rep. 158, 159.

Larry’s contention fails. The evidence long ago surpassed mere support. We stopped the flow of evidence in our order of December 12, 1986, and stated: “this Court’s file in this matter is replete with documentation from both parties that has done nothing to further the resolution of this matter on appeal.” We find no merit in this issue.

Issue 9. Attorney Fees.

The court ordered each party to pay its own attorney fees. Robin contends that she should have been awarded her fees.

Our standard of review on the payment of attorney fees is whether the court abused its discretion in refusing to award such fees. In Re Marriage of Gallinger (Mont. 1986), [221 Mont. 463,] 719 P.2d 777, 783, 43 St.Rep. 976, 984. Under Section 40-4-110, MCA, the trial court may order a party to pay the other party’s fees after considering their respective financial resources.

The District Court was fully aware of the financial resources and burdens of the parties, as evidenced in a dozen findings. After assessing the information, the court properly concluded that neither party was entitled to attorney fees. We find no abuse of discretion.

We affirm on all issues.

MR. JUSTICES HARRISON, WEBER, HUNT and McDON-OUGH concur.