author: JUSTICE GULBRANDSON

text:
    HILLCREST HOMEOWNERS ASSOCIATION, a Montana corporation, Plaintiff and Appellant, v. A.G. WILEY and Kanchana Wiley, Defendants and Respondents.
    No. 89-23.
    Submitted on Briefs June 30, 1989.
    Decided Aug. 31, 1989.
    778 P.2d 421.

      Thomas R. Bostock, Warden, Christiansen, Johnson and Berg, Kalispell, for plaintiff and appellant.
    H. James Oleson, Oleson Law Firm, Kalispell, for defendants and respondents.
   JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Plaintiff, the Hillcrest Homeowners Association, filed a complaint in the District Court for the Eleventh Judicial District, Flathead County, alleging that the defendants, A.G. Wiley and Kanchana Wiley, now deceased, violated a restrictive covenant by building a garage on their lot in Hillcrest Estates subdivision, Flathead County. The District Court entered summary judgment in favor of the defendants. Plaintiffs appeal. We reverse and remand.

Hillcrest Estates is a residential subdivision located in Flathead County. In 1969, the owners of Hillcrest Estates adopted restrictive covenants that were then duly recorded in the Clerk and Recorder’s office in Flathead County. These covenants provide in pertinent part:

“RESIDENTIAL AREA COVENANTS.
“1. LAND USE AND BUILDING TYPE. No lot shall be used except for single family residential purposes, only one residence per lot and no lot shall be subdivided.
“2. IMPROVEMENTS, (a) All homes must be of new construction and have a minimum of 1600 square feet of living area on the ground level.
“(b) Exterior of improvements must be completed within one year after start of construction.
“(c) No temporary buildings of any nature will be allowed during or after construction, including trailer homes.”

In 1979, A. G. Wiley and Kanchana Wiley purchased lot 3 in the Hillcrest Estates subdivision. In late 1980, or early 1981, they completed construction of a steel sided garage on their property. The Wileys built this garage as part of their original plan to build a single family residence with a detached garage. Kanchana Wiley died in May, 1983, and the actual residence was never built. A. G. Wiley eventually moved to Utah.

In April, 1987, the Hillcrest Homeowners Association filed a complaint in the District Court for the Eleventh Judicial District, Flathead County, alleging that the garage violated the restrictive covenants. The Hillcrest Homeowners Association appeal the District Court’s finding, which stated that the garage built on lot 3 is permanent, complete, and does not violate the restrictive covenants.

The only issue Hillcrest raises on appeal is whether the District Court erred in determining that the garage did not violate the restrictive covenants.

Hillcrest argues that the garage violates the “residential purposes” language of the restrictive covenant. In particular, Hillcrest argues that while a garage, in conjunction with a residence, is consistent with “residential purposes,” a garage by itself, absent the development of a residence, is not consistent with “residential purposes.” Hillcrest therefore argues that the Wileys violated the restrictive covenant that is applicable to the Hillcrest Estates. We agree.

Restrictive covenants are generally valid “if they tend to maintain or enhance the character of a particular residential subdivision.” Town & Country Estates Ass’n [v. Slater] (Mont. 1987), [227 Mont. 489,] 740 P.2d 668, 671, 44 St.Rep. 1257, 1260. When interpreting a restrictive covenant, this Court applies the same rules as those applicable to contract interpretation. Gosnay v. Big Sky Owners Ass’n (1983), 205 Mont. 221, 227, 666 P.2d 1247, 1250. Therefore, this Court must, if reasonably practical, read the restrictive covenant as a whole so as to give meaning to every part of the covenant. See § 28-3-202, MCA. In addition, the language of the covenant is to be understood in its ordinary and popular sense, see § 28-3-501, MCA, and the language will govern the covenant’s interpretation when the words are plain and unambiguous. Gosnay, 205 Mont. at 227, 666 P.2d at 1250.

When interpreting the covenant in this case, this Court must ascertain the meaning of “residential purposes.” Webster’s Dictionary defines “residential” as “used as a residence or by residents.” “Residence” is then defined as “the act or fact of dwelling in a place for some time.” Webster’s Ninth New Collegiate Dictionary 1003 (1986). Consistent with these definitions, courts have held that a garage built on a lot without a dwelling house on the same lot violates a restrictive covenant when the covenant specifically limits a lot’s use to “residential purposes.” In particular, the Washington Court of Appeals in Sandy Point Improvement Co. v. Huber (1980), 26 Wash.App. 317, 613 P.2d 160, recited:

“A private garage is a proper appurtenance necessary to the enjoyment of a dwelling house and does not violate a ‘for residence purposes only’ covenant [cites omitted]. However, if the garage is placed on an adjoining lot, it is no longer deemed to be appurtenant and does violate such a restriction even though used in connection with a residence on an adjoining lot [cites omitted].”

Sandy Point Improvement Co., 613 P.2d at 163. In light of the ordinary and popular use of the word “residential,” we agree with the Washington Court of Appeals’ interpretation of “residential purposes.”

In the present case, Wiley’s garage was built on lot 3 in the Hill-crest Estates subdivision approximately seven years before the complaint was filed. The restrictive covenant clearly provides that the Hillcrest lots shall be used only for “single family residential purposes.” Reading the covenant as a whole and in light of the popular and ordinary meaning of “residential,” a garage, by itself, is not consistent with “single family residential purposes” when the garage is not used in conjunction with a residential dwelling. Therefore, we hold that Wiley violated the restrictive covenant when he built the garage on lot 3 in the Hillcrest Estates subdivision and did not, within a reasonable time, build a residential dwelling to accompany the garage. We therefore reverse the District Court and remand this case to allow the District Court to determine the proper relief warranted under the facts of this case.

Reversed and remanded.

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

JUSTICE HARRISON does not concur with the findings of the majority.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RICK JEROME URNESS, Defendant and Appellant.
    No. 89-79.
    Submitted on Briefs June 30, 1989.
    Decided Aug. 31, 1989.
    778 P.2d 419.
    Cannon & Sheehy and Edmund F. Sheehy, Jr., Helena, for defendant and appellant.
    Marc Racicot, Atty. Gen., Dorothy McCarter, Asst. Atty. Gen., Mike McGrath, County Atty., and Carolyn Clemens, Deputy County Atty., Helena, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the First Judicial District, in and for the County of Lewis and Clark, State of Montana. The appellant, Rick Jerome Urness, was charged with burglary and sexual intercourse without consent. He was tried and convicted by a jury on both counts and was sentenced to ten years in prison, with seven years suspended on each count, the sentences to be served concurrently. In addition, the appellant was ordered to pay restitution and abide by certain conditions as ordered by the District Court. He now appeals. We affirm.

The sole issue before this Court is whether the evidence presented at trial supports the verdicts of burglary and sexual intercourse without consent.

The record indicates that at approximately 4:00 a.m., on March 24, 1988, two deputies from the Lewis and Clark County Sheriffs office were dispatched to the victim’s home. Present at the home when the officers arrived were the victim and the victim’s boyfriend. While taking the victim’s statement, the officers found her very upset. The victim stated that she had been asleep in her bedroom and was awakened by the appellant, her estranged husband. After she and the appellant had gone into another room he physically assaulted her. She further stated that she attempted to call the police while the appellant was still in her home but the appellant ripped the telephone out of the wall, and continued to physically assault her. After the assault, the appellant left the home. The officers noticed that the lock on the side door of her house had been broken and that the victim had red marks on her arms and wrists.

The officers left the house and searched for the appellant on foot and by car. While searching for the appellant, the officers were dispatched on another call. At approximately 6:00 a.m., the Sheriffs deputies were dispatched back to the victim’s house. A call was received from the victim stating that someone was outside her house. However, the officers failed to find anyone.

The victim’s first statement form which she gave the Sheriff’s deputies did not contain the details of a rape, only the assault. Later, on May 4, 1988, the victim completed another statement which contained more details of the offense which were testified to at trial.

At trial, the victim testified that at the time of the incident she and the appellant were legally separated and awaiting the decree of dissolution. She testified that most of their marital problems were the result of the appellant’s alcohol abuse. She stated that he reacted violently to both the separation and the pending divorce. The victim further testified that she had been dating another man during the separation, and when the appellant discovered she was dating, he threatened to kill the man involved.

The victim’s testimony at trial included the details of what occurred March 24, 1988. She testified that the appellant first appeared next to her bed wearing only his shirt and attempted to get into bed with her. She stated that she got the appellant out of her bedroom so he would not see her boyfriend in her bed. She further claimed the appellant became violent and pulled the phone out of the wall. She stated that despite repeated pleas for the appellant to leave, he grabbed her, mauled her and sexually assaulted her. Finally, she testified the appellant became even more angry, slammed her into the kitchen cabinets, then picked her up over his head and threw her to the floor, causing her to lose consciousness.

A friend of the victim also testified that the victim had come to her the next morning extremely upset and told her what transpired the previous night. The friend took Polaroid photographs of the bruises on the victim’s body but the pictures were unclear, therefore they did not attempt to photograph other marks on the victim’s body. The friend testified as to the type and severity of the marks on the victim, specifically that the marks on her arms were red welts in the shape of a hand.

Others who testified at trial included the victim’s boyfriend, the sheriff’s deputy, the appellant’s girlfriend, and a bartender from a local bar/casino. The bartender testified that the appellant entered the bar on the night of March 23, 1988, around midnight, and asked for his estranged wife, who had been employed there on a part-time basis. The bartender stated that the appellant was angry, argumentative and called the victim a “bitch, a slut and a no good wife.” The bartender testified that while the appellant remained in the bar between 45 minutes and an hour, he did not appear drunk, only angry.

The appellant argues that the evidence is insufficient to support the verdicts because he testified that he was invited to the victim’s home and he did not rape her. He also asserts that her version of the facts were inherently incredible, and that the weight of the evidence and the credibility of the witnesses does not support the guilty verdicts. We disagree.

The weight of evidence and credibility of witnesses is exclusively within the province of the trier of fact. It is the duty of this Court to uphold the verdict if there is substantial evidence to support the conclusion reached by the trier of fact. State v. Oman (1985), 218 Mont. 260, 707 P.2d 1117; State v. Maxwell (1982), 198 Mont. 498, 647 P.2d 348. The jury heard the testimony of all the witnesses and concluded defendant was guilty of the crimes charged. There is nothing to support appellant’s claim that the victim’s testimony was inherently incredible. We conclude there is substantial evidence to support the jury’s verdict.

Affirmed.

JUSTICES WEBER, GULBRANDSON, McDONOUGH and HUNT concur.


author: MR. JUSTICE GULBRANDSON

text:
    DALE H. PRACHT and Jeanne M. Pracht, Husband and Wife, Plaintiffs and Appellants, v. SCOTT S. ROLLINS and LaDonna K. Rollins, Husband and Wife, Defendants and Respondents.
    No. 89-83.
    Submitted on Briefs July 20, 1989.
    Decided Aug. 31, 1989.
    779 P.2d 57.

      Jon A. Oldenburg, Lewistown, for plaintiffs and appellants.
    Timothy J. O’Hare, Lewistown, for defendants and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Plaintiffs, Dale H. and Jeanne M. Pracht, filed a complaint in the District Court of the Tenth Judicial District, Fergus County, seeking specific performance of a contract for deed dated August 14, 1984. Defendants, Scott S. and LaDonna K. Rollins, filed a counterclaim, seeking rescission of the contract due to a breach of the implied warranty of habitability and workmanship. The District Court, sitting without a jury, entered judgment for defendants. Plaintiffs appeal. We affirm in part, reverse in part and remand.

The issues raised on appeal are:

1. Whether the District Court erred by determining that plaintiffs breached the implied warranty of habitability.

2. Whether the District Court erred by rescinding the contract for deed due to failure of consideration.

Dale H. and Jeanne M. Pracht, current residents of Wisconsin, owned and still own in fee simple absolute a house built by Dale H. Pracht and located in Fergus County, Montana. Dale H. Pracht is a pharmacist by profession but built and sold two other houses prior to the house that is the subject of this case. After building the house during 1982 and 1983, the Prachts advertised the house for sale in 1984 as a “newer high-tech solar home.” The Prachts sold the property and house located thereon to Scott S. and LaDonna K. Rollins for $65,000 via a contract for deed dated August 14, 1984. The Rollinses paid $7,500 as a downpayment and commenced to make the monthly payments on the house beginning in August, 1984.

The Rollinses moved into the house shortly after signing the contract for deed. Beginning in December, 1984, the Rollinses became alerted to a possible humidity problem in the house. The Rollinses first discovered that cloth items they stored in a closet of the house for approximately four months were moldy and had to be thrown away. Other problems slowly manifested themselves throughout 1985 and 1986. Specifically, during the summer of 1985, the Rollinses noticed that the paint was beginning to peel off the deck, supposedly as a result of using green lumber, and a few of the boards on the deck were curling up. The Rollinses also began to notice that when they closed the doors and windows in the house, they expanded and were therefore very hard or even impossible to open or close again. This problem was also attributed to the humidity problem found within the house.

Near the end of 1985 or the beginning of 1986, the Rollinses noticed that the siding of the house started to pull away from where it was joined together. After the siding began to give way, the Rollinses then noticed that the house was not sheathed underneath or braced with plywood; as a result, gaps began to form in the siding. The Rollinses also noticed that the garage roof began to leak; that mold was growing in several window and closet areas; that the window sills began to crack; and that during the winter of 1986-87 the foundation of the house began to separate from the backfill soil. Scott Rollins also testified that he suspected a wiring defect in the house because light bulbs did not seem to last in the house and because they had to have their microwave repaired four different times. According to the repairman, the microwave breakdowns occurred as a result of power surges.

The Rollinses initially took steps to repair and fix the problems, including venting the clothes dryer outside and putting in a new window in the basement. However, in light of all of the problems that began to appear after the Rollinses bought the house, they finally made a decision in late December of 1986 or early January of 1987 to move out of the house. Beginning in June, 1987, and after contacting an attorney, the Rollinses ceased making payments under the contract for deed. The Rollinses, via their attorney, sent a notice to the Prachts on July 7, 1987 stating that the house was noticeably deteriorating and that it was becoming uninhabitable. The Rollinses then demanded cancellation of the contract and a refund of their downpayment. The Prachts responded in October, 1987 by filing a lawsuit seeking specific performance of the August 14, 1984 contract for deed in the District Court of the Tenth Judicial District, Fergus County. The Rollinses filed a counterclaim, seeking rescission of the contract for deed due to a breach of the implied warranty of habitability and workmanship. The Rollinses then remained in the house until October, 1988 without making any further payments.

The District Court, sitting without a jury, found that the house was not constructed in a workman-like manner or according to the Uniform Building Code; that the defects the Rollinses discovered in the house were not readily apparent when they bought the house and did not begin to appear until December, 1984; that the Rollinses relied upon the Prachts’ representations that they were capable of building, and did build a “high-tech” energy efficient house; and that neither Scott nor LaDonna Rollins were knowledgeable in the construction of houses. The court then concluded that the Prachts breached the implied warranty of habitability and workmanship in building the house; that the breach was material and constituted a condition entitling the Rollinses to stop making their payments under the contract for deed; that the Prachts, as the builder-vendor of the house, were in a better position to have prevented the improper construction of the house and to have avoided the problems; and that the Rollinses were entitled to rescission of the contract which therefore entitled them to recover their $7,500 downpayment. The court, however, allowed the Prachts to retain the monthly payments made by the Rollinses from August, 1984 through May, 1987 as reasonable rent. The District Court then entered judgment for the Rollinses on January 4, 1989. The Prachts appeal from this judgment.

The first issue raised on appeal is whether the District Court erred by determining that the Prachts breached the implied warranty of habitability.

This Court first recognized the implied warranty of habitability in 1982 in Chandler v. Madsen (1982), 197 Mont. 234, 642 P.2d 1028. In Chandler, the evidence demonstrated that the house was uninhabitable due to inoperative doors, windows, and locks; cracked walls and floors; broken windows; bent plumbing; uneven and bulged floors; separation between fixtures and walls; cracked bathroom tiles; and a settlement of the foundation by 3.6 inches in some areas. We therefore abandoned the doctrine of caveat emptor and adopted the implied warranty of habitability. We held that a builder-vendor of a new house impliedly warrants that the house is constructed in a workman-like manner and is suitable for habitation. Chandler, 197 Mont. at 239, 642 P.2d at 1031. In a subsequent case, Degnan v. Executive Homes, Inc. (1985), 215 Mont. 162, 696 P.2d 431, we upheld the application of the implied warranty of habitability. In Degnan, the house in question suffered from structural damage as a result of it being built on unstable ground. We again emphasized that the theory behind the implied warranty of habitability is not one of fault, but rather that the builder-vendor is in a better position to prevent the resulting harm and therefore is properly liable as opposed to the innocent buyer. Degnan, 215 Mont. at 166, 696 P.2d at 433. We then held that the builder-vendor was liable for defects in the structure which made it uninhabitable. Degnan, 215 Mont. at 166-67, 696 P.2d at 434.

More recently, in Samuelson v. A.A. Quality Const., Inc. (Mont. 1988), [230 Mont. 220,] 749 P.2d 73, 45 St.Rep. 157, this Court further refined the definition of the implied warranty of habitability. In Samuelson, the basement of the house in question had a water seepage problem. As a result of the seepage problem, the buyers had to remove furniture from the guest room; remove portions of the sheet-rock in an attempt to locate the problem; roll back the carpeting for weeks at a time to allow the floor to dry; install floor heaters to dry the wet areas; raise items in the storeroom; restrict the use of the recreational room; use a pump to clear the crawl space of excess water; and make use of a vacuuming service to clear the water from the basement. The buyers eventually had the problems remedied. We then held that “the implied warranty of habitability of a dwelling house is limited to defects which are so substantial as reasonably to preclude the use of the dwelling as a residence.” Samuelson, 749 P.2d at 75, 45 St.Rep. at 160.

In the present case, the Prachts argue that the implied warranty of habitability does not apply in this case. They argue that they are not a “builder-vendor” as contemplated by this Court. Further, the Prachts argue that they built the house for themselves and then resided in it for approximately a year, therefore they argue that the house was not new at the time of the sale. The Prachts also argue that even if this Court finds that the implied warranty of habitability applies, that the defects in this house do not equal a breach of the warranty since the defects do not reasonably preclude the use of the house as a residence. We disagree.

The record reveals that Dale Pracht had built and sold at least two other houses prior to building the house in question and then selling it to the Rollinses. Although Dale Pracht is obviously an amateur builder and a pharmacist by profession, the implied warranty of habitability is nonetheless applicable. As noted earlier, the theory behind the implied warranty is not to discern fault, but to place the liability on the party most able to prevent the resulting harm. Dale Pracht was the builder-vendor and was thus in a better position to prevent the structural and design problems that arose in the house than the innocent buyers — the Rollinses. Further, the record also reveals that although the Prachts lived in the house for approximately a year, they nonetheless had not yet completed the house before selling it to the Rollinses. The District Court therefore did not err in finding that the implied warranty of habitability applied in this case.

We also hold that in light of the facts, the District Court did not err in finding that the defects in the house constituted a breach of the implied warranty of habitability. The District Court found and the evidence shows that a severe ventilation problem existed in the house as a result of the design and construction of the house. As a consequence, problems began gradually to manifest themselves while the Rollinses were living in the house. These problems included inoperative windows, doors, and locks; a faulty heating and air exchange system; cracked window sills and door frames; moldy fixtures; a leaky garage roof; separation of the foundation from the backfill soil; and separation of the siding from each other and the house. The defects also included the house not being properly sheathed or braced with plywood. These problems constituted defects which were so substantial as reasonably to preclude the use of the dwelling as a residence. Merely because the occupants continued to live in the house until they were able to find another suitable place to live, does not necessarily mean that the defects were not so substantial as to preclude reasonably, the use of the dwelling as a residence. We therefore affirm the District Court on this issue.

The second issue on appeal is whether the District Court erred by rescinding the contract for deed due to failure of consideration.

In Conclusion of Law No. 6, the District Court stated that the house was not what the Prachts represented it to be and therefore it was not what the Rollinses had reasonably expected. The District Court therefore concluded that the Rollinses were entitled to rescind the contract as a result of a substantial failure of consideration. The Prachts argue in part that the District Court erred in concluding that the Rollinses were entitled to rescind the contract as a result of failure of consideration because the Rollinses did not plead this affirmative defense as required by Rule 8(c), M.R.Civ.P.. We agree with this part of the Prachts’ argument.

Rule 8(c), M.R.Civ.P., states that “a party shall set forth affirmatively . . . failure of consideration ...” An affirmative defense is generally waived if not set forth affirmatively. Chandler, 97 Mont. at 241, 642 P.2d at 1032. The record shows that the Rollinses did not plead the affirmative defense of failure of consideration in either their answer or their counterclaim. Therefore the District Court erred in concluding that the Rollinses were entitled to rescind the contract as a result of failure of consideration.

The court, however, also stated in its Conclusions of Law No. 8, that the Rollinses were entitled to rescission of the contract due to the Prachts’ material breach of the implied warranty of habitability and workmanship. The Prachts then also attempt to argue that the equitable remedy of rescission is applicable only in those circumstances that are set forth in § 28-2-1711, MCA, which addresses when a party to a contract may rescind. While many of our common law principles have been codified in statutes, a court of equity nonetheless is not bound by the codified laws when fashioning an equitable result. On the contrary, a court sitting in equity has all the power requisite to render justice between the parties. Maddox v. Norman (1983), 206 Mont. 1, 13-14, 669 P.2d 230, 237; Rase v. Cas tle Mountain Ranch, Inc. (Mont. 1981), [_Mont._,] 631 P.2d 680, 687, 38 St.Rep. 992, 1000. We thus reject the Prachts’ argument that rescission is not proper in this case, however, we do note that the District Court did not properly consider all of the available evidence. After finding that the Rollinses were entitled to rescission of the contract, the District Court also found that the Rollinses were entitled to recover their $7,500 downpayment and that the Prachts were entitled to retain the monthly payments made by the Rollinses as reasonable rent. However, we note that when fashioning this remedy, the District Court failed to consider the time the Rollinses spent in the house from June, 1987 to October, 1988. During this sixteen month time period, the Rollinses lived in the house without paying the Prachts any sort of reasonable rent. In light of the District Court’s oversight of this evidence, we remand this case to the District Court to consider all of the evidence before fashioning a remedy.

Affirmed in part, reversed in part, and remanded.

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


author: JUSTICE GULBRANDSON JUSTICE McDONOUGH, JUSTICE HUNT,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. KATHERINE RYDBERG, Defendant and Appellant.
    No. 89-193.
    Submitted on Briefs July 13, 1989.
    Decided Aug. 31, 1989.
    778 P.2d 902.

      Gary E. Wilcox, Billings, for defendant and appellant.
    Marc Racicot, Atty. Gen., Dorothy McCarter, Asst. Atty. Gen., Helena, Harold Hanser, County Atty., Curtis L. Bevolden, Deputy County Atty., Billings, for plaintiff and respondent.
   JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Defendant, Katherine Rydberg, appeals from a judgment of the District Court for the Thirteenth Judicial District, Yellowstone County, finding her guilty of Criminal Possession of Dangerous Drugs pursuant to § 45-9-102, MCA. This judgment was entered after the District Court denied Rydberg’s motion to suppress evidence seized pursuant to a search warrant allegedly issued without probable cause. We affirm.

The only issue presented for our review is whether the District Court erred in finding that the application. for the search warrant contained facts sufficient to establish probable cause.

On August 8, 1988, Detective Thayer filed an application for a search warrant for Rydberg’s residence. The grounds for the application were based in part on a July 6, 1988 phone call from an anonymous informant who reported observing Rydberg’s involvement with the buying and selling of drugs. The informant also identified two other people, Walter Foster and Debbie Hicks, who “were involved with drugs” and who also associated with Rydberg. Specifically, the informant stated that Foster had sold Rydberg approximately one gram of cocaine the month before. This information was partially corroborated by a crimestopper’s tip received on March 3, 1988; the tipster reported, as did the primary informant, that Foster was buying and selling drugs.

On July 25, 1988, the primary informant reported observing dangerous drugs at the Rydberg residence. The informant observed Foster at Rydberg’s residence on July 28, 1988, and also reported seeing Rydberg at Hicks’ residence “several times.” The informant called a third time on August 7,1988, and reported observing crank, possibly some cocaine, and other dangerous drugs at the Rydberg residence. These facts were also noted in the application as grounds for issuance of the search warrant. The search warrant application then stated that both Foster and Hicks had been charged with criminal possession of dangerous drugs, and that Hicks was subsequently convicted of selling these drugs while Foster’s charge was dismissed.

The subsequent search of Rydberg’s residence and purse produced 5.7 grams of methamphetamines, 1.5 grams of cocaine, 1 gram of marijuana, a razor blade and snort tube, and three empty bindles. Consequently, the County Attorney for Yellowstone County charged Rydberg via an Information filed August 12, 1988, with Criminal Possession of Dangerous Drugs in violation of § 45-9-102, MCA. Rydberg subsequently filed a motion to suppress all evidence seized during the August 10, 1988 search. The motion was denied.

After Rydberg waived her right to a jury trial, she was found guilty on March 7, 1989, before the District Court and received a three-year deferred imposition of sentence subject to fulfillment of specified conditions.

Rydberg appeals from this judgment and sentence. She alleges that the search of her residence and purse was a violation of her federal and state constitutional rights because the search warrant application did not contain facts sufficient to establish probable cause.

The Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana State Constitution protect against unlawful searches and seizures. These constitutional provisions require a showing of facts in the application for a search warrant sufficient to establish probable cause. State v. O’Neill (1984), 208 Mont. 386, 393, 679 P.2d 760, 763-64. Probable cause for issuance of a search warrant, however, is “significantly less than that required for a conviction.” State v. Walston (Mont. 1989), [236 Mont. 218,] 768 P.2d 1387, 1389, 46 St.Rep. 309, 311. The application need only contain facts sufficient to indicate the probability of criminal activity in light of the “totality of the circumstances.” Illinois v. Gates (1983), 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548; State v. Crain (Mont. 1986), 223 Mont. 167, 725 P.2d 209, 210, 43 St.Rep. 1628, 1629. This “totality of the circumstances” analysis requires an issuing magistrate to make a practical, commonsense decision about the probability of criminal activity from:

“all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information
Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548.

We hold that the totality of facts set forth in the search warrant application filed by Detective Thayer were sufficient to lead the issuing magistrate to conclude that Rydberg’s residence probably contained dangerous drugs. The basis of the informant’s knowledge was stated; the informant learned of the presence of drugs in Rydberg’s residence through personal observation. The crimestopper’s tip, which provided some corroboration as to the character of Foster and as reported by the informant, indicates the veracity of the information provided. The search warrant application stated that both Foster and Hicks had previously been charged with drug-related offenses. If a police official provided this information regarding Foster’s and Hicks’s prior drug-related charges, then the veracity of the information is further supported.

The application regrettably fails to state clearly the source of this information, however, the application does identify the informant when reiterating facts that were reported by the informant. The application states that:

“Both of these subjects [Foster and Hicks] have previously been charged with criminal possession of dangerous drugs. Hicks was convicted on the charges of selling dangerous drugs. Foster’s charge was dismissed.

“According to the Cl [Confidential Informant], Foster sold Rydberg some cocaine approx, one gram, a month ago . . . According to the Cl, that is working with this department Rydberg has been seen at Debbie Hicks’s residence several times, also according to the Cl, who called in again on 7-25-88 to say that at the Rydberg residence there was some drugs again, that was seen by the Cl . . . On August 7, 1988 the same Cl, called this office again, with some more information concerning Rydberg. After talking to the Cl, I was informed that in the house was crank and possibly some cocaine, and other drugs.” (Emphasis added.)

The search warrant application does not identify the informant as the person providing the information about Foster’s and Hicks’s prior drug charges, yet it does refer specifically to the informant as the source of the other information provided, indicating that a person other than the informant provided the facts about Foster’s and Hicks’s prior criminal record.

When a magistrate determines that probable cause exists to warrant the issuance of a search warrant, this Court should not only give great deference to that decision but we should also draw every reasonable inference possible to support the decision. State v. Sundberg (Mont. 1988), [235 Mont. 115,] 765 P.2d 736, 741, 45 St.Rep. 2235, 2240; State v. Pease (1986), 222 Mont. 455, 724 P.2d 153, 159, 43 St.Rep. 1417, 1424. In light of the facts outlined above, we uphold the District Court’s denial of Rydberg’s motion to suppress evidence seized under the search warrant and therefore affirm the judgment.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and WEBER concur.

JUSTICE SHEEHY did not participate in this opinion.

JUSTICE McDONOUGH and JUSTICE HUNT, dissenting, each concurring in the other:

JUSTICE McDONOUGH,

dissenting:

The application for the search warrant of the defendant’s home was not sufficient to establish probable cause. The pertinent'parts of such application are as follows:

“On 7-6-88 this office received an anonymous phone call from a subject who had some information concerning a KATHY RYDBERG, who lives at 1004 Sunhaven Trailer Court, Laurel, Montana, who has involvement in dealing, buying and selling of drugs. The subject who called in since then has become a confidential informant. The Cl stated that RYBERG [sic] was involved with several people who are into drugs. Of these people, two names were brought up. One is a WALTER FOSTER, who lives at 1515 E. Main Street Laurel, Montana. The other is a DEBBIE HICKS, who lives on 224 South 32nd street, Billings, Montana.
“Both of these subjects have previously been charged with criminal possession of ‘dangerous drugs. Hicks was convicted on the charges of selling dangerous drugs. Foster’s charge was dismissed. According to the Cl, Foster sold Rydberg some cocaine approx; one gram, a month ago.
“Foster also was called in on a crimestoppers tip on March 3 1988. The informant said that a Walter Foster who lives at 1515 E. Main, in Laurel, Montana, was dealing and selling' drugs. This is a different informat [sic] entirely. According to the Cl, that is working with this department Rydberg has been seen at Debbie Hicks residence several times, also according to the Cl, who called in again on 7-25-88 to say that at the Rydberg residence there was some drugs again, that was seen by the CI. Also Foster has been at the Rydberg house recently. Foster was observed at the Rydberg residence at around 10:00 PM on July 28, 1988. Foster was driving a cream colored 4 door Ford.
“On August 7, 1988 the same Cl, called this office again, with some more information, concerning Rydberg. After talking to the Cl, I was informed that in the house was crank and possibly some cocaine, and other drugs.
“This information that was received from the Cl, is based upon the Cl being in the residence, from time to time, and seeing the drugs, and the paraphenalia [sic].”

It is to be noted from examining the wording of the application that the only person who for sure connects the defendant in any way to possible criminal behavior or incriminating items, is the confidential informant. It is confusing whether the anonymous informant who called in on July 6, 1988, is the same or a different confidential informant who is referred to later.

Therefore, the applicant for the search warrant, a detective, has as his only connection to the defendant, the hearsay evidence of the confidential informant. There is nothing in the affidavit which would inform the magistrate that such hearsay was reliable or that the officer thought the informant was credible. The information and statements given by the informant are vague and not in any way explicit, and do not lend themselves to be able to be checked as to their veracity.

We.have adopted the totality of the circumstances test (see State v. Sundberg (Mont. 1988), [235 Mont. 115,] 765 P.2d 736, 45 St.Rep. 2235) adopted in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, which was discussed therein as follows:

“For all these reasons, we conclude that it is wiser to abandon the ‘two-pronged test’ established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations. See Jones v. United States, [362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697], supra; United States v. Ventresca, 380 U.S. 102 [85 S.Ct. 741, 13 L.Ed. 2d 684] (1965); Brinegar v. United States, 338 U.S. 160 [69 S.Ct. 1302, 93 L.Ed. 1979] (1949). The task of the issuing magistrate is simply to make a practical, common-sense decision Whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . concluding]’ that probable cause existed. Jones v. United States, 362 U.S. at 271 [80 S.Ct. at 736]. We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli.”

Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332.

Looking at this application a magistrate would ask common sense questions which by asking the questions point out the deficiency of the application:

“Can the confidential informant be believed? and
“Why isn’t he/she more specific about dates, times, places, itemization, description of the house, etc., and therefore
“Was he/she actually in the house, and
“Can his/her information be corroborated?”

Without further facts under the circumstances here, there is no basis to believe that probable cause exists for issuance of the warrant. I would reverse the District Court and suppress the evidence. I further concur in the following dissent of JUSTICE WILLIAM E. HUNT, SR.

JUSTICE HUNT,

dissenting:

I dissent. The search warrant application did not contain sufficient facts to establish probable cause and, thus, violated the protections guaranteed by the Fourth Amendment to the United States Constitution and Art. II, § 11 of the Montana Constitution.

The search warrant application was partially based upon telephone calls from an anonymous informant who reported observing Rydberg buying and selling drugs. The majority notes, and correctly so, that when a magistrate examines an application for a search warrant, he must consider:

“. . . all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information. [Emphasis added.]”

Illinois v. Gates (1983), 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548.

The validity of a search warrant based on information received from an informant will not necessarily be negated as long as the reliability and credibility (the veracity) and the basis of the informant’s knowledge is established. The majority makes a feeble attempt to establish the veracity of the anonymous informant, who communicated by telephone, by stating that because a crimestopper’s tip corroborated the informant’s report, the “veracity of the information provided” was indicated. It is not the veracity of the “information” which is at issue when dealing with informants, but the veracity of the informant himself. In this case, the veracity of the informant is impossible to establish because the informant remains anonymous. Because the informant remains anonymous, his veracity cannot be established, therefore, his statements may not be introduced as a basis for issuing the search warrant. Without the informant’s statements, the search warrant fails for lack of probable cause.

The majority states that the “application need only contain facts sufficient to indicate the probability of criminal activity in light of the totality of the circumstances.” Aside from information received from the informant’s anonymous telephone calls, the only other fact considered when issuing the warrant was a crimestopper’s tip. The veracity of the crimestopper’s tipster, as with the anonymous informant, has not been established. For all we know, it could have been the same person.

Moreover, the majority admits that the “application regrettably fails to state clearly the source of this information.” Regrettable indeed! What is even more regrettable is the kind of precedent established by this case. Even in the most lenient of circumstances, the information relied upon would not establish probable cause and is, therefore, unconstitutional.

I would reverse the District Court.

I also concur in the dissent of JUSTICE McDONOUGH.


author: JUSTICE GULBRANDSON JUSTICE HUNT,

text:
    DAVID ALARIC PALMER, a protected person by MARTHA ROSE DIACON, his conservator, Plaintiff and Respondent, v. MONTANA INSURANCE GUARANTY ASSOCIATION, Defendant and Appellant.
    No. 89-186.
    Submitted on Briefs Aug. 10, 1989.
    Decided Sept. 6, 1989.
    779 P.2d 61.
    Sidney R, Thomas and Ramona R. Heupel; Moulton Law Firm, Billings, for defendant and appellant.

      Dennis Patrick Connor, Great Palls, John C. Risjord, Overland Park, Kan., for plaintiff and respondent.
   JUSTICE GULBRANDSON

delivered the Opinion of the Court.

This case involves the interpretation of an offset provision of the Montana Insurance Guaranty Association Act. The Montana Insurance Guaranty Association appeals from entry of judgment by the Eighth Judicial District Court, Cascade County, Montana, in favor of respondent, David Palmer. This action, filed on behalf of Palmer, a protected person, sought declaratory relief to have determined whether the Montana Insurance Guaranty Association (MIGA) is obligated to pay Palmer its statutory limit of $300,000. The District Court concluded MIGA was obligated to pay Palmer its statutory limit. We reverse.

The facts underlying this action are more fully set forth in Palmer by Diacon v. Farmers Ins. Exchange (Mont. 1988), [233 Mont. 515,] 761 P.2d 401, 45 St.Rep. 1694, but the essential facts are these. Palmer suffered severe head injuries in a motorcycle accident in 1984. He sought recovery for his damages, stipulated to exceed $1,000,000, from both his uninsured motorist carrier and Abaddon Products Company, Inc., the manufacturer of the motorcycle helmet he was wearing at the time of the accident.

Abaddon, an Idaho corporation, carried $1,000,000 in insurance coverage through its primary insurance carrier, Ideal Mutual Insurance Company. Ideal became insolvent, which triggered coverage of MIGA. Because Abaddon is an Idaho corporation, Palmer was required to make his claim first against the Idaho Insurance Guaranty Fund, as mandated by § 33-10-115(2), MCA, which provides:

“Any person having a claim which may be recovered under more than one insurance guaranty association or its equivalent shall seek recovery first from the association of the place of residence of the insured . . .”

Palmer filed this declaratory judgment action to have determined whether the coverage limits of MIGA could be stacked with the amounts received from the Idaho Insurance Guaranty Fund. MIGA argues that § 33-10-115(2); MCA, requires an offset of the Idaho Fund contribution against its statutory maximum. The offset provision of § 33-10-115(2), MCA, provides:

“Any recovery under this part shall be reduced by the amount of recovery from any other insurance guaranty association or its equivalent.”

The District Court concluded the Idaho payments were to be offset against the unpaid claim, rather than against MIGA’s limits. In its Order granting summary judgment, the District Court concluded:

“[T]he sentence ‘[a]ny recovery under this part shall be reduced by the amount of recovery from any other insurance guaranty association or its equivalent’ means simply that the total value of PALMER’S claim, that is the value of the total amount payable as damages for claimant’s injuries caused by the covered occurrence, shall be reduced by the amount the claimant has recovered from the Idaho guaranty fund.”

Judgment for $300,000 was entered in favor of Palmer on February 6, 1989 and this appeal followed. MIGA raises these issues for our review:

1. Was the Montana Insurance Guaranty Association entitled to offset amounts Palmer received from the Idaho Insurance Guaranty Fund against its statutory maximum?

2. Was the Montana Insurance Guaranty Association entitled to offset amounts Palmer received under his uninsured motorist policy?

Respondent has received the Idaho statutory maximum, $300,000, from the Idaho Insurance Guaranty Fund. The issue presented here is whether MIGA is obligated for the residual unpaid portion of Palmer’s claim, which the parties have stipulated exceeds MIGA’s statutory limit of $300,000. Respondent argues MIGA is obligated to pay the unsatisfied portion of the claim because Montana’s statutes do not prohibit stacking of insurance guaranty association limits. Respondent supports his position by emphasizing the declared purpose of the guaranty association as stated in § 33-10-101(2), MCA:

“The purpose of this part is to provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the cost of such protection among insurers.”

Respondent argues the act is an assurance that the duties and obligations of the insolvent insurer will be satisfied. Therefore, to give effect to the act’s purpose, respondent argues, the District Court was correct to conclude the payments paid by the Idaho Insurance Guaranty Fund are to be offset against the total claim, rather than against MIGA’s statutory limit. We disagree.

The Montana Insurance Guaranty Association Act, § 33-10-101, et seq., MCA, was adopted in 1971 from the model act designed by the National Association of Insurance Commissioners. The Montana act provides for the creation of the Montana Insurance Guaranty Association, a non-profit unincorporated legal entity consisting of insurers licensed to transact business in Montana. While the purpose of the act is to “avoid financial loss” to claimants and policyholders because of the insolvency of an insurer, the breadth of this announced goal is limited by the terms of the statute. Section 33-10-105, MCA, provides that the association shall:

“(a) be obligated to the extent of the covered claims . . . but such obligation shall include only that amount of each covered claim which is in excess of $100 and is less than $300,000 ...” (Emphasis added.)

Recovery under this act, therefore, is limited to an amount which exceeds $100 but is less than $300,000. The scope of MIGA’s coverage is additionally limited by the offset provisions of § 33-10-115, MCA:

(1) Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim shall be required to exhaust first his right under such policy. Any amount payable on a covered claim under this part shall be reduced by the amount of any recovery under such insurance policy.

“(2) Any person having a claim which may be recovered under more than one insurance guaranty association or its equivalent shall seek recovery first from the association of the place of residence of the insured . . . Any recovery under this part shall be reduced by the amount of recovery from any other insurance guaranty association or its equivalent.” (Emphasis added.)

MIGA’s statutory obligations are not as broad as Palmer suggests. The act’s purpose language, while very broad, cannot be given the “effect” as Palmer construes it, in light of the unambiguous language which defines and limits MIGA’s obligations.

The framers’ comments to this offset provision of the Model Act support our conclusion that payments from another association are offset against the $300,000 limit of MIGA’s obligation:

“This subsection does not prohibit recovery from more than one Association, but it does describe the Association to be approached first and then requires that any previous recoveries from like Associations must be set off against recoveries from this Association. ” (Emphasis added.)

It is the duty of this Court to give effect to the purpose of a statute. LaFountaine v. State Farm Mut. Auto. Ins. Co. (1985), 215 Mont. 402, 698 P.2d 410. However, if the intent of the legislature can be determined from the plain meaning of statutory words, we will go no further or apply any other means of interpretation. Phelps v. Hillhaven Corp. (Mont. 1988), [231 Mont. 245,] 752 P.2d 737, 45 St.Rep. 582. We conclude that this language of the statute is clear and unambiguous.

The conclusion reached here is not contrary to the permitted stacking provisions of the statute. Since recovery from other States’ insurance guaranty funds may not reach MIGA’s statutory limit of $300,000, any difference is recoverable under Montana’s Act, up to the $300,000 limit.

The Montana Insurance Guaranty Association was not adopted as a form of reinsurance for every insurer who becomes insolvent. Rather, it is clear the Association was established to soften resulting hardship which may be encountered, under limited circumstances, by a policy holder or claimant when an insurer become insolvent.

Because we have concluded MIGA is entitled to offset the $300,000 paid by the Idaho Fund, we need not address Palmer’s second issue relating to an offset of his uninsured motorist coverage.

Reversed and remanded for entry of judgment in accordance with this opinion.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, Mc-DONOUGH and WEBER concur.

JUSTICE SHEEHY did not participate in this opinion.

JUSTICE HUNT,

dissenting.

I dissent. The purpose of the offset provisions provided in § 33-10-115, MCA, is to offset amounts received from solvent insurers and other state guaranty associations against the value of a covered claim, thereby preventing a claimant from recovering more than the total value of the claim. The purpose of the provisions is not to offset amounts received from solvent insurers and other state guaranty funds against the Montana Insurance Guaranty Association’s $300,000 liability limit.

The Montana Insurance Guaranty Association Act is to be liberally construed to prevent a claimant’s financial loss because of a failed insurer. The act is not to be read restrictively to protect MIGA at the expense of injured claimants. The guaranty association is already protected by the $300,000 liability limit written into the statute.

I would affirm the District Court.


author: JUSTICE HUNT

text:
    In re The MARRIAGE OF MARCIA J. HOFFMASTER, Petitioner and Appellant, and RICHARD K. HOFFMASTER, Respondent and Respondent.
    No. 88-618.
    Submitted on Briefs July 13, 1989.
    Decided Sept. 7, 1989.
    780 P.2d 177.

      Jon E. Ellingson, Ellingson & Moe, Missoula, for petitioner and appellant.
    Thomas J. Beers, Connell, Beers & MacDonald, Missoula, for respondent and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Marcia J. Hoffmaster, petitioner and appellant, appeals from the custody arrangement, child support and maintenance award mandated in the judgment entered by the District Court of the Fourth Judicial District, Missoula County. We affirm in part and reverse and remand for a modification of child support consistent with this opinion.

The following issues are raised on appeal:

1. Whether the District Court exercised proper discretion when it established custodial arrangements.

2. Whether the District Court exercised proper discretion when it established the amount of child support.

3. Whether the District Court exercised proper discretion when it established the amount of maintenance.

Marcia and Richard Hoffmaster were married on May 29, 1977. Previously, Richard received a gift of $250,000 worth of Amstar stock from his father. Prior to the marriage, Marcia had a bachelor of arts in elementary education and special education and was a full-time special education teacher. In addition, she needed only 15 credit hours to receive her masters of arts in special education. Richard had a degree in English.

Before the the marriage, Richard purchased land at North Fork, Idaho, where he built a cabin. Marcia and Richard primarily resided at the Idaho cabin from the year of their marriage until 1980. During that time, Richard’s parents made gifts of money to him which were used to pay marital expenses and make payments on property. The parties lived frugally during those years. From 1980 to 1983 they resided in Arizona, Washington and Idaho. In 1983, the parties moved to Missoula, Montana, and continued to live a frugal lifestyle. They lived in a tri-plex rental.

In 1983, Richard began a course of diversification which involved the sale of his Amstar stock in order to make other financial investments. Among his investments was a $50,000 down payment on the purchase of a golf course in Missoula. Marcia worked part-time on the golf course until August 15, 1985.

In April of 1984, Richard’s father died, leaving him a sizable inheritance. Richard received the first installment of his inheritance, $1,000,000, in the fall of 1985. Richard used his inheritance to purchase assets and pay sums due on the golf course property.

In May of 1985, the parties moved into a $115,000 residence on Fairview Avenue. Soon after moving into the home, Marcia went to Chicago to visit her parents. Upon her return in August of 1985, Richard advised her that he would be moving out.

On December 4, 1985, Marcia filed for dissolution of the marriage. On January 4, 1986, the parties’ son, Alex, was born.

During the parties’ separation, Marcia continued to live at the Fairview residence. Alex remained with Marcia. In November of 1987, Marcia and Alex moved to Elgin, Illinois, and have resided there since.

Dissolution proceedings were held before the District Court in July of 1988. During dissolution proceedings, Richard received $750,000 as another inheritance installment. He is likely to receive another installment pending resolution of a dispute with the Internal Revenue Service. The court entered its findings of fact, conclusions of law and judgment on August 17, 1988. Included in the court’s judgment, were resolutions to the issues of child custody, child support and maintenance.

Custody of Alex was awarded jointly to the parties with primary residential custody granted to Marcia. Richard was granted residential custody for two months during the summer, one month in the spring and one month in the fall. The parties received alternating residential custody during Christmas and Easter. The joint custody arrangement will remain in effect until Alex starts the first grade of primary school. At that time, Marcia will have primary residential custody of Alex and Richard will have residential custody for two months during the summer.

The court, in its judgment, established that Richard is responsible for child support as follows:

“a) $1,200 child support per month until the child reaches the age of 18 or is otherwise emancipated.
“b) All medical, ocular, dental and orthodontic bills that are incurred by the child.
“c) All medical, ocular, dental and orthodontic insurance.
“d) All secondary and post-secondary education costs of the child to whatever schools he is qualified to attend and which the child, and both parents, wish him to attend.”

The court also established that Richard shall pay Marcia $1,000 per month maintenance until Alex reaches the first grade of primary school. Marcia received $34,000 cash as a property settlement in lieu of maintenance reduced by $3,000 which had been previously advanced.

The first issue raised on appeal is whether the District Court exercised proper discretion when it established the custodial arrangement.

As noted, the District Court implemented a joint custody arrangement. Marcia was given primary residential custody while Richard was given residential custody for two months during the summer, one month in the spring and one month in fall. The arrangement is to remain in effect until Alex starts the first grade of primary school.

Marcia argues that under In re the Custody of Andre (Mont. 1988), [234 Mont. 80,] 761 P.2d 809, 45 St.Rep. 1745, she has established de facto custody of Alex. Andre, however, is distinguishable from the present case.

In Andre, this Court awarded mother custody. The parties in Andre never married but lived together and shared parental responsibilities for the first four years of the child’s life. When the parties separated, the child remained in the custody of mother. While the parties never established a judicial custody arrangement, they did agree orally that mother would have custody. The parties also agreed orally to a child support arrangement.

In the present case, while Marcia maintained custody of Alex upon the parties’ separation, Richard never conceded custody of Alex to Marcia. This was amplified by the fact that Richard sought temporary joint custody of Alex during settlement negotiations. A custody arrangement had never been agreed upon and remained at issue pending resolution of the action. Under these facts, de facto custody has not been established.

Marcia attempts to argue that establishing a joint custody arrangement violates § 40-4-219, MCA, which provides that the District Court, in its discretion, may modify a prior custody decree if it finds that circumstances of the custody arrangement have changed. Because neither a decree nor informal arrangement was in effect prior to this action, the statute does not apply.

Montana policy favors joint custody. See In re the Marriage of Cruikshank (1986), 222 Mont. 152, 154, 720 P.2d 1191, 1193. Section 40-4-223(1)(a), MCA, provides in part:

“(1) In custody disputes involving both parents of a minor child, the court shall award custody according to the best interests of the child as set out in 40-4-212:
“(a) to both parents jointly.”

Section 40-4-212, MCA, provides:

“The court shall determine the custody in accordance with the best interest of the child. The court shall consider all relevant factors, including but not limited to:
“(1) the wishes of the child’s parent or parents as to his custody;
“(2) the wishes of the child as to his custodian;
“(3) the interaction and interrelation of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest;
“(4) the child’s adjustment to his home, school, and community;
“(5) the mental and physical health of all individuals involved;
“(6) physical abuse or threat of physical abuse by one parent against the other parent or the child; and
“(7) chemical dependency, as defined in 53-24-103, or chemical abuse on part of either parent.”

Further, the standard of review for child custody issues was established by this Court in In re the Marriage of Bier (Mont. 1981), [_ Mont. _,] 623 P.2d 550, 551, 38 St.Rep. 158, 159, as follows:

“In order to prevail, [Marcia] must show an abuse of discretion by the judge, must demonstrate that there is a clear preponderance of evidence against the findings, and must overcome the presumption that the judgment of the trial court is correct. [Citation omitted.] [In reviewing the District Court’s custody order], this Court need only look to the record to see if the factors set forth in Section 40-4-212, MCA, were considered, and then must determine whether the trial court made appropriate findings with respect to these criteria. [Citation omitted. Parenthetical inserts supplied.]”

The District Court, in its findings of fact and conclusions of law, specifically noted that both Marcia and Richard are capable of caring for Alex and communicate with each other about his care; that it is in the best interests of Alex for both Marcia and Richard to be involved in Alex’s development; and that it is in the best interests of Alex to give Marcia and Richard joint custody with residential custody to be divided between them.

We hold that in light of the District Court’s findings, there was no abuse of discretion nor a showing by Marcia of a clear preponderance of evidence against the findings. The District Court properly considered the best interests of Alex as required under § 40-4-212, MCA.

The next issue raised on appeal is whether the District Court exercised proper discretion when it established the amount of child support.

The District Court established that Richard is responsible for $1,200 child support plus medical and educational needs. Marcia contends that the court erred in setting the amount of child support. She requested $3,357 per month.

An award'of child support is governed by § 40-4-204, MCA, which provides in pertinent part:

“(1) In a proceeding for dissolution of marriage, ... or child support, the court may order either or both parents owing a duty of support to a child to pay an amount reasonable or necessary for his support, without regard to marital misconduct, after considering all relevant factors including:
“(a) the financial resources of the child;
“(b) the financial resources of the custodial parent;
“(c) the standard of living the child would have enjoyed had the marriage not been dissolved;
“(d) the physical and emotional condition of the child and his educational needs;
“(e) the financial resources and needs of the noncustodial parent. [Emphasis ours.]”

The District Court stated in its findings:

“The child, presently age 2Vi, has only experienced a standard of living with his mother and that standard is not consistent with the standard of living developed during the course of the marriage.” The District Court maintained that while it considered the Uniform District Court Guidelines on Child Support (Mont. 1987), [227 Mont. 1,] 44 St.Rep. 828, it did not adhere to the Guidelines because of the lifestyles of the parties, the standard of living of the child, and that the Guidelines:
“. . . would allow this child to be favored with monies and personal wealth that would not be in the best interest of the child in his development toward adulthood.”

The District Court awarded child support payments in the amount of $1,200 a month instead of the $3,357 a month as Marcia requested. While the District Court is not bound by the Guidelines, Marcia contends that the Guidelines suggested an award of $4,500 per month, thus, the amount awarded grossly deviated from the Guidelines and was in error. Richard never contested the calculation of the Guideline amount.

The amount arrived at by the District Court ignores two statutory factors under § 40-4-204, MCA — the standard of living Alex would have enjoyed had the marriage not been dissolved and the financial resources of Richard. The standard of living that Alex would have enjoyed had the marriage not been dissolved is not to be confused with the standard of living that the parties enjoyed during the marriage, nor is it the standard of living that Alex enjoyed during the marriage.

Richard has collected $1,750,000 in inheritance installments and will likely receive another installment pending a resolution of a dispute with the Internal Revenue Service. Richard also owns income-producing property. Hence, the sum awarded by the District Court does not reflect Richard’s financial resources nor the standard of living Alex would have enjoyed had the marriage remained intact because of his father’s wealth.

Marcia requested $3,357 a month based on expenditures. The District Court rejected both Marcia’s $3,357 per month request and the Guidelines’ suggested amount of $4,500 per month, as Marcia contends, and, instead, implemented a $1,200 per month (plus medical and educational needs) support payment. The amount awarded is unreasonable and would result in substantial injustice to Alex who is entitled to share in the high standard of living achieved by his father. See, In re the Marriage of Anderson (Mont. 1988), [230 Mont. 89,] 748 P.2d 469, 471, 45 St.Rep. 40, 43. The District Court will be reversed on appeal only where there has been a “clear abuse of discretion resulting in substantial injustice.” See, In re the Marriage of Alt (1985), 218 Mont. 327, 333, 708 P.2d 258, 261. We hold that the District Court abused its discretion in establishing the amount of child support. We reverse on this issue and remand to the District Court with instructions to grant $3,357 per month for child support in light of the expenditures reflected in the record.

The last issue raised on appeal is whether the District Court exercised proper discretion when it established the amount of maintenance.

Here, the District Court awarded Marcia $1,000 per month maintenance until Alex reaches the first grade. In addition, she received $34,000 in cash to be treated as part of the property settlement in lieu of maintenance reduced by a $3,000 advancement.

The award of maintenance is governed by § 40-4-203, MCA, which provides:

“(1) In a proceeding for dissolution of marriage . . . the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
“(a) lacks sufficient property to provide for his reasonable needs;and
"(b) unable to sup[port himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
“(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.”

In the findings of fact and conclusions of law, the District Court noted that Marcia received a bachelor of arts in elementary education and special education and was 15 credit hours short of receiving her masters of arts in special education. Marcia was a full-time special education teacher prior to her marriage. The District Court noted that it provided for maintenance until Alex reaches the first grade of primary school in order to allow Marcia to continue her education for recertification and/or her masters degree while attending to Alex.

In the property distribution, Marcia received the cash equivalent of the marital estate property in the amount of $76,000 and a $34,000 cash property settlement in lieu of maintenance ($10,000 of which to be considered as Marcia’s contribution to the golf course) reduced by a $3,000 advancement. The court further noted that the standard of living established during the marriage was nomadic and frugal and that the time Marcia spent at the Fairview residence did not create a standard of living or new lifestyle.

The standard of review for awarding maintenance was set forth by this Court in Anderson, 748 P.2d at 471, as follows:

“The District Court has wide discretion in the determination of maintenance awards, and that discretion is not to be disturbed unless clearly erroneous.”

Citing In re the Marriage of Aanenson (1979), 183 Mont. 229, 235, 598 P.2d 1120, 1123,

The District Court found that Marcia had a sufficient occupational and educational background. Granting her maintenance until Alex reaches school age gives her the time for recertification and further training, hence, she will be capable of self-support when Alex reaches school age. The court also considered the fact that Marcia will receive a portion of the marital estate. Thus, the District Court properly considered the factors set forth in § 40-4-203, MCA, and did not abuse its discretion when it awarded maintenance.

Affirmed in part and reversed and remanded for a modification of child support consistent with this opinion.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, Mc-DONOUGH and GULBRANDSON concur.


text:
    GARY G. DORAN, Petitioner and Appellant, v. The CITY COURT OF WHITEFISH, MONTANA, and The Honorable Bradley F. Johnson, a Judge thereof, Respondent.
    No. 89-59.
    Submitted on Briefs May 18, 1989,
    Decided Sept. 7, 1989.
    779 P.2d 68.

      James D. Moore, Moore & Doran, Kalispell, for petitioner and appellant.
    Bradley F. Johnson, Whitefish City Judge, Whitefish, for respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

The District Court of the Eleventh Judicial District, Flathead County, granted a writ of certiorari and supervisory control to review the propriety of sanctions and contempt imposed upon Petitioner, Gary G. Doran, by the City Court of Whitefish. After the District Court affirmed the City Court without a hearing, Petitioner moved to alter or amend the judgment. Following a hearing, the District Court denied the motion. Petitioner appeals. We reverse and remand.

The sole issue raised, on appeal is whether the District Court erred in upholding the City Court’s imposition of sanctions and contempt.

Petitioner is an attorney at law, practicing in the Kalispell area. On February 9, 1988, he agreed to defend Anthony Conces against a charge of driving while under the influence, pending in the Whitefish City Court. Conces had been charged with the offense on November 23, 1987, and, prior to obtaining Petitioner’s services, had represented himself in the matter. Apparently, during the period Conces represented himself, he was granted a series of continuances by the City Court, and therefore was not arraigned until January 19, 1988. On the same day he agreed to represent Conces, Petitioner called the City Court to verify the trial date and was informed that a jury trial was scheduled for February 24, 1988.

On February 16, 1988, Petitioner began a district court jury trial, State v. Beggio. Sometime after the trial began, the Honorable Michael H. Keedy, judge for the Eleventh Judicial District Court, scheduled an emergency child custody hearing for Wednesday, February 24, 1988, at 9:30 a.m., a time that directly conflicted with the Conces trial in City Court. Petitioner, as representative of the child, was required to attend the hearing. Petitioner’s office received notice of the custody hearing on Thursday, February 18, 1988, while Petitioner was still involved in the Beggio trial. Because of the continuing nature of the Beggio trial, Petitioner did not return to his office until Friday, February 19, 1988, and did not receive actual notice of the conflict with the Conces trial until after 5 p.m. on that day.

On Monday, February 22, 1988, closing arguments in State v. Beggio were made; the trial was completed at approximately 12:30 p.m. That afternoon, Petitioner represented defendants in two separate proceedings, a felony arraignment and a felony sentencing. He instructed his secretary to contact the Whitefish City Court to advise it of the conflict of February 24. Petitioner’s secretary called the City Court two times during the afternoon of February 22 and was advised by the City Court clerk that it was unlikely that a continuance would be granted.

On the morning of Tuesday, February 23, 1988, after attending a probation revocation hearing before the District Court, Petitioner called the City Court. He was advised by the City Court clerk that the Judge was busy and that no continuance had been granted. He was told to call back in 15 minutes, which he did, only to be informed that the Judge had left for the day without granting a continuance. Petitioner then called the City Judge’s home phone and left a message on the Judge’s answering machine. The City Judge disputes ever having received such a message, maintaining that the recording device on his answering machine was not operating on February 23.

Petitioner then prepared a written motion to continue, which his law partner delivered to the Whitefish Police Department, located next to the City Court, at about 3:30 p.m. on February 23. The motion was left with the police department because it appeared that no one was present at City Court. The motion was accompanied by a letter signed by District Court Judge Keedy, stating that the Conces trial directly conflicted with a district court hearing.

The City Judge did not receive the motion to continue until the following morning, February 24, 1988, the day set for the Conces trial. At 10 a.m. that day, a jury panel was assembled, and the City Court was brought into session. When the Conces case was called, neither the defendant nor anyone on his behalf appeared. Due to the absence of the defense, the City Court granted a continuance, The court then proceeded with its calendar, hearing the case of City v. Ross, in which the defendant was found guilty and assessed a portion of the jury costs.

Later that day, the City Judge wrote a letter to petitioner, advising him:

“[Y]ou have a duty and obligation to this Court which has no less dignity than that accorded District Court. This Court will not allow you to simply dictate and announce your course of dealing on matters currently pending and then escape the obvious and foreseeable consequences of your actions.”

The Judge imposed financial sanctions against Petitioner in the amount of $132, the cost of summoning the jury, to be paid by March 10, 1988.

When Petitioner failed to pay the sanctions, the City Court directed him to appear on March 21, 1988, to show cause why he should not be held in contempt. On March 18, 1988, Petitioner moved the court to reset the hearing due to conflicts with previously scheduled District Court hearings. On March 24, 1988, Petitioner forwarded a letter to the City Judge, stating that he felt that imposition of sanctions was unreasonable. He enclosed an affidavit detailing the circumstances leading to the February 24, 1988, sanctions. In response, the court set a final due date of April 8, 1988, for settlement of the sanctions. When Petitioner again failed to pay the sanctions, the court set another show cause hearing for April 20, 1988. Petitioner appeared on that date, refused to pay the sanctions, was found in contempt and fined $25. At that time, he served the City Judge with a writ of certiorari and supervisory control issued by the District Court.

On September 12, 1988, the District Court issued a memorandum and order upholding the City Court’s contempt citation. Petitioner moved the Court to alter or amend the judgment. After a hearing, the District Court denied the motion. From this order, Petitioner appeals.

Although a contempt of court citation is not an appealable order, a higher court may review the citation by way of a writ of certiorari. Section 3-1-523, MCA. On review, the higher court determines whether the tribunal issuing the contempt order acted within its jurisdiction, and whether substantial evidence supports the finding of contempt. In re the Contempt of Graveley (1980), 188 Mont. 546, 555, 614 P.2d 1033, 1039.

By statute, a city court may punish an individual for contempt when that individual disobeys or resists the “execution of a lawful order or process made or issued by the judge.” Section 3-11-303, MCA (Emphasis added.). We must therefore determine whether the imposition of sanctions by the City Court for Petitioner’s failure to appear on the day of trial after repeatedly requesting a continuance constituted a lawful order. If the order was not lawful, the City Court exceeded its jurisdiction when it cited Petitioner for contempt.

A city court, like any other court, has the power to “provide for the orderly conduct of proceedings before it or its officers.” Section 3-1-111(3), MCA. This power, however, may not be exercised arbitrarily.

While we commend the City Court for its efforts to provide for the orderly conduct of proceedings before it, we nevertheless hold that, in this case, the court acted arbitrarily when it imposed sanctions against Petitioner. Petitioner had no choice but to attend the district court hearing. It was impossible for him to be in two places at one time. Furthermore, Petitioner exercised due diligence in attempting to alert the City Court of the conflict. In addition to making several phone calls to the City Court, Petitioner delivered to the Whitefish Police Department a letter signed by District Court Judge Keedy, stating that the conflict existed. The City Court had this letter in its possession on the morning of the day set for trial.

In addition, the City Court acted arbitrarily in imposing jury costs as a sanction against Petitioner. The record shows that the jury mustered for the Conces trial was used in another trial heard in City Court that very same day. In the other trial, City v. Ross, the defendant was found guilty and assessed jury costs. Thus, the sanction of jury costs against Petitioner amounted to double recovery.

Because the City Court acted arbitrarily, the imposition of sanctions did not constitute a lawful order. Therefore, the City Court exceeded its jurisdiction when it cited Petitioner for contempt for failing to pay the sanctions.

Reversed and remanded for entry of an oider dismissing the contempt citation and sanctions imposed against Petitioner.

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


author: CHIEF JUSTICE TURNAGE

text:
    In re The MARRIAGE OF ROBERT L. RYAN, Petitioner and Appellant, and SHIRLEY J. RYAN, Respondent and Respondent.
    No. 89-184.
    Submitted on Briefs Aug. 10, 1989.
    Decided Sept. 7, 1989.
    778 P.2d 1389.
    J. Cort Harrington, Jr., Helena, for petitioner and appellant.
    Shirley J. Ryan, Paradise Valley, Ariz., pro se.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The First Judicial District Court, Lewis and Clark County, granted a decree of dissolution to appellant Robert L. Ryan and respondent Shirley J. Ryan and ordered the appellant to pay respondent $9,380 to fulfill his child support obligations. Robert Ryan appeals the child support judgment alleging that it is an improper modification of the parties’ separation agreement because it creates a retroactive child support obligation. We affirm.

Did the District Court err in ordering the husband to pay child support to the wife when the separation agreement required the husband to support children in his custody and those children subsequently moved to the wife’s home?

The episodic marriage of Shirley and Robert Ryan began on January 24, 1959 and produced four children: Cheryl, Robert, Jr., Patrick and Michael. The parties divorced in 1973 and remarried two years later. On September 20, 1976, they entered a decree of legal separation which incorporated their separation agreement. Shirley petitioned the District Court for dissolution in 1986 but declined to complete the matter until Robert filed for dissolution on September 27, 1988.

The separation agreement, which remained in effect until the final decree of dissolution, provided for a balanced division of the family property, obligations and children. Shirley assumed custody of Cheryl and Robert, Jr., while Robert took custody of Patrick and Michael. The agreement also provided for child support:

“Husband agrees to be responsible for and support Patrick Sean Ryan and Michael Erin Ryan and Wife agrees to be responsible for ■and support Cheryl Ann Ryan and Robert Lee Ryan, Jr.”

Each party was to retain medical insurance and tax deductions for the children in their custody. Shirley testified during the dissolution proceedings that she took a lesser amount of the family property to compensate for the earlier date at which Cheryl and Robert, Jr., would reach emancipation.

This arrangement continued until February 1980 when Patrick left his father and went to live with his mother. By that time, Cheryl and Robert, Jr., had both attained the age of majority. In December 1984, Michael also moved in with his mother, but returned to his father’s home in November 1986. In May 1988, Michael again left his father to live with his mother.

On July 31, 1986, Shirley filed an application for a decree of dissolution, child support, and modification of custody. Among other things, she requested that the court order Robert to pay retroactive and continuing child support for the time that Patrick and Michael lived in her home. Robert entered a motion to quash. After denying Robert’s motion, the District Court granted the decree of dissolution as of February 24, 1989. The District Court found that the parties had agreed to a mutual modification of their 1976 separation agreement by allowing Patrick and Michael to live with their mother. The court found that Patrick and Michael, both emancipated at that time, had lived with Shirley for forty months and twenty-nine months respectively. Applying the Supreme Court’s Guidelines for Child Support, the District Court ordered Robert to pay Shirley $9,380 at $200 per month. Robert now appeals that decision.

We agree with the District Court’s equitable and well-reasoned decision.

The general rule on modification of child support provides that, “a decree may be modified by a court . .. . only as to installments accruing subsequent to actual notice to the parties of the motion for modification.” Section 40-4-208(1), MCA (1987). This Court, however, has carved out an equitable exception to the statute.

“These legal principles, however valid they may be as a general rule, are rendered impotent when the parties mutually agree that they be ignored and also carry out such agreement in actual fact

State of Washington ex rel. Blakeslee v. Horton (1986), 222 Mont. 351, 355, 722 P.2d 1148, 1150.

In the separation contract, Robert agreed that he would have custody and support responsibilities for Patrick and Michael. The District Court found that Robert at least tacitly assented to modification of the arrangement by allowing Patrick and Michael to live with their mother.

As the District Court noted, this case is notably similar to In Re Marriage of Sabo (1986), 224 Mont. 252, 730 P.2d 1112, 43 St.Rep. 2175. In Sabo the divorce decree and settlement agreement provided that the couple’s children would live with the wife and the husband would pay child support. We held that the wife was not entitled to child support after she gave residential custody of the children to her former husband. Sabo, 730 P.2d at 1114, 43 St.Rep. at 2178-79.

As a corollary to Sabo, the parent who takes residential custody of children pursuant to a mutual modification of custody provisions is entitled to child support. Parents are responsible for the support of their offspring. In Re Support of Krug (Mont. 1988), [231 Mont. 78,] 751 P.2d 171, 174, 45 St.Rep. 446, 449; State v. Hubbard (1986), 222 Mont. 156, 160, 720 P.2d 1177, 1179; In Re Marriage of Hickey (1984), 213 Mont. 38, 45, 689 P.2d 1222, 1226. Child support is for the benefit of the children. Krug, 751 P.2d at 173, 45 St.Rep. at 448. It should flow toward the children regardless of the diversionary machinations of the parents.

The present case is less one of retroactive modification than it is a simple case of collecting reasonable support based on custody. Robert had a legal, moral, and contractual duty to support Patrick and Michael, and he avoided that duty while they were living with Shirley. Robert now complains that Shirley will reap a windfall under the District Court’s order. To the contrary, the order will prevent Robert from reaping a windfall at Shirley’s expense.

Affirmed.

JUSTICES HARRISON, SHEEHY, HUNT and GULBRANDSON concur.


author: JUSTICE McDONOUGH

text:
    SUZANNE KRUEGER GUNNING, Plaintiff and Appellant, v. GENERAL MOTORS CORPORATION, a Delaware Corporation, Defendant and Respondent.
    No. 89-276.
    Submitted on Briefs Aug. 10, 1989.
    Decided Sept. 7, 1989.
    779 P.2d 64.

      Dennis Patrick Conner, Great Falls, Erik Thueson, Helena, for plaintiff and appellant.
    Curtis G. Thompson and John Stephenson, Jr., Jardine, Stephenson, Blewett & Weaver, Great Falls, Kent Hanson, Richard A. Bowman, Kim M. Schmid, Bowman and Brooke, Minneapolis, Minn., for defendant and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Appellant Suzanne Krueger Gunning appeals the order of the District Court of the Eighth Judicial District, Cascade County, denying her motion for a new trial. The District Court found the record supports the jury’s zero damages verdict on her claim for loss of consortium. We affirm.

Suzanne frames one issue for appeal: May a jury award no damages on a loss of consortium claim where the injured party has suffered significant injuries, has been awarded damages for those injuries, and the injured party’s spouse brings a claim for loss of consortium?

On February 11, 1985, Andrew Krueger and Suzanne Krueger Gunning filed this action against General Motors Corporation (GM). Andrew was injured in an accident involving a General Motors’ vehicle that rendered him a quadriplegic. Andrew’s claim was based on strict product liability for failure to warn and unreasonably dangerous design; Suzanne’s claim was a derivative action for loss of consortium arising out of Andrew’s injuries.

Suzanne and Andrew met in Texas in 1979. The couple exchanged vows informally, Suzanne began using Andrew’s last name, and they held themselves out as married. They had a child in June 1980 and moved to Montana shortly afterward. At the time of the accident, the couple and their child were all living together in Great Falls. Thirteen days after the accident, Andrew and Suzanne formalized their marriage in a civil ceremony performed while Andrew was in the hospital.

The evidence presented at trial demonstrated that because of the severity of his injuries, Andrew requires a daily minimum of eight to ten hours of hands-on attendant care with someone available to him on a 24-hour basis. After the accident, Suzanne took an eight month leave of absence from her job in order to care for Andrew. After returning to work, she continued to take care of him until November, 1985, when they were legally separated. The dissolution of their marriage became final on April 3, 1986, a little over a year after the filing of this action. After Suzanne left, Andrew’s care was taken over by his parents.

At the close of trial, GM moved for a directed verdict based on lack of evidence to support the existence of a marriage relationship prior to the couple’s formal marriage in the hospital. The District Court denied the motion, held there was a common law marriage, and instructed the jury that if they reached a verdict favoring Andrew they could assign a value to Suzanne’s loss of consortium in a separate verdict. Although there was much evidence presented at trial regarding the type of care Andrew required and Suzanne provided following the accident, there was little testimony regarding the nature of the marital relationship enjoyed by Andrew and Suzanne prior to the accident. At trial, the jury awarded Andrew $1,293,430.00 in damages on his personal injury claim and zero damages to Suzanne on her claim for loss of consortium. Suzanne moved the District Court to grant a new trial to reconsider the amount of her damages, the court denied her motion and upheld the jury’s verdict. The issue is now before this Court on appeal.

In making our determination, we review this case in accordance with the appropriate standard. It is well established that when determining whether the evidence supports the trial court’s verdict the reviewing court will only review the evidence to decide if the verdict is supported by substantial evidence. Tope v. Taylor (Mont. 1988), [235 Mont. 124,] 768 P.2d 845, 45 St.Rep. 2242; Weinberg v. Farmer’s State Bank of Worden (1988), [231 Mont. 10,] 752 P.2d 719, 45 St.Rep. 391; Wyman v. Dubray Land Realty (Mont. 1988), [231 Mont. 294,] 752 P.2d 196, 45 St. Rep. 621; Clark v. Norris (Mont. 1987), [226 Mont. 43,] 734 P.2d 182, 44 St. Rep. 444. This Court will not substitute its judgment for that of a jury with respect to the amount of damages unless it appears that the award is so grossly out of proportion to. the injury received so as to shock the conscience of this Court. Kelleher v. State (1972), 160 Mont. 365, 503 P.2d 29; Salvail v. Great Northern Ry. Co. (1970), 156 Mont. 12, 473 P.2d 549; Sheehan v. DeWitt (1967), 150 Mont. 86, 430 P.2d 652.

A cause of action for loss of consortium of the deprived spouse is separate and distinct from the claim of the injured spouse and the basis for such a claim lies in the Montana statutes in which the husband and wife contract for obligations of mutual respect, fidelity, and support. Bain v. Gleason (1986), 223 Mont. 442, 726 P.2d 1153. Section 40-2-101, MCA. Thus, a woman by her marriage obtains a contractual right to consortium. Dutton v. Hightower and Lubrecht Construction Co. (D.Mont. 1963), 214 F.Supp. 298, 300. Consortium includes a legal right to the aid, protection, affection and society of the other spouse. Bain, 726 P.2d at 1155; Dutton, 214 F.Supp. at 300; Wallace v. Wallace (1929), 85 Mont. 492, 516, 279 P. 374, 382. Suzanne established to the trial court’s satisfaction a valid marriage, Suzanne then was entitled to offer proof that her contractual right to the aid, protection, affection, and society of Andrew was adversely affected by the accident.

During trial, Suzanne testified concerning the care she provided Andrew and the emotional hardship it caused her. Very little evidence was presented concerning the nature of their marital relationship prior to the occurrence of the accident. The only evidence on the record of this relationship consists of the following testimony:

“Question: What sort of marriage did you and Andy have before his accident occurred?
“Answer: We had a very happy and healthy marriage. Very active. We went fishing and camping and hunting and swimming and dancing a lot.”

Assessing any damages to Suzanne’s consortium necessitates some proof of the established marital lifestyle of the couple prior to the accident. See generally, Am.Jur. 30 POF 73 §§ 17-18. As established in Bain, 726 P.2d at 1154-55, a claim for loss of consortium is based on the husband and wife contracting for obligations of mutual respect, fidelity, and support; thus it follows that the claimant must offer proof that these mutual obligations were fulfilled prior to the other spouse’s injury, and that due to the injury fulfillment of these obligations has been impaired. In this case no evidence other than the testimony quoted above was offered to establish the nature of the marital relationship enjoyed by Andrew and Suzanne prior to the accident. The only evidence that intimates that this relationship was impaired by the accident is Suzanne’s testimony, “we were constantly fighting. The stress was too much. I had to get out of there for our daughter’s sake. We did no longer get along.” This cursory testimony does not rise to the level of substantial credible evidence upon which the jury could base an award of damages for Suzanne’s alleged loss of consortium.

Suzanne relies on several cases from other jurisdictions in contending that an award of zero damages for her claim is improper, thus entitling her to a new trial. See, e.g., Fleming v. Albertson’s, Inc. (Fla.Ct.App. 1988), 535 So.2d 682; Stroud v. Govreau (Mo.Ct.App. 1973), 495 S.W.2d 682; Nelson & Budd, Inc. v. Brunson (1985), 173 Ga.App. 856, 328 S.E.2d 746. However, these cases hold that a zero damages verdict on a consortium claim is improper when there was substantial, undisputed, and unrebutted evidence concerning the impact the injury had on the marital relationship, Fleming, 535 So.2d at 684, when there was substantial evidence to support the claim for loss of consortium, Stroud, 495 S.W.2d at 684, (overruled on other grounds), and when the spouse has presented unrefuted evidence as to loss of consortium. Nelson, 328 S.E.2d at 749. (Emphasis added.) In the present case there was no substantial and unrefuted evidence regarding the injury’s impact on the marriage, thus Suzanne’s reliance on these cases is misplaced.

While some negative effects on the marriage of Andrew and Suzanne may be implied as a result of the accident, a jury does not base an award of damages on implication or speculation, an award must be based on the substantial evidence presented at trial. We must review the record to decide if the verdict is supported by substantial evidence, — Tope, 768 P.2d at 849; Weinberg, 752 P.2d at 721-722; Wyman, 752 P.2d at 199; Clark, 734 P.2d at 184, and we must review the evidence in the light most favorable to the prevailing party, here the defendant, Stewart v. Fisher (Mont. 1989), [235 Mont. 432,] 767 P.2d 1321, 46 St.Rep. 116; Rogers v. Hilger Chevrolet Co. (1970), 155 Mont. 1, 465 P.2d 834. In light of the lack of any substantial evidence on the record concerning both the nature of and injury to the Krueger’s marital relationship, the jury was entitled to conclude that Suzanne had not met her burden of proving damages on her claim, and the District Court properly denied the motion for new trial.

We affirm the District Court.

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