text:
    NANCY L. BERRY, Conservator of the Estate of Esther Seman, a Protected Person, Plaintiff and Respondent, v. CAROLL SEMAN, Defendant and Appellant.
    No. 90-060.
    Submitted on Briefs Aug. 16, 1990.
    Decided Nov. 27, 1990.
    801 P.2d 589.

      Caroll Seman, Great Falls, pro se.
    Kevin C. Meek, Alexander, Baucus & Linnell, P.C., Great Falls, for plaintiff and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant, Caroll Seman, appeals from the dismissal of his appeal from the Justice Court, Great Falls Township, Cascade County, to the Eighth Judicial District Court, Cascade County. We affirm.

The dispositive issue is whether Seman properly perfected an appeal from the Justice Court to the District Court.

On September 14, 1989, respondent, Nancy L. Berry, conservator of the estate of Esther Seman, filed a complaint against appellant, Caroll Seman, in the Cascade County Justice Court. The complaint sought damages for money owing on a rental agreement and the removal of Seman from the subject premises. The Justice Court entered judgment against Seman on November 2, 1989, awarding Berry damages in the amount of $1,400 together with attorney's fees of $200 and costs of $31.50. The court also granted Berry immediate possession of the property.

On the same day, Seman filed a notice of appeal to the District Court. Approximately 25 days later, on November 27, 1989, he filed a document entitled Posting of Property Bond. The property bond consisted of a Montana State Beer and Wine License.

On November 30, 1989, Berry filed an objection to the property bond along with an affidavit of her attorney, which contested the ownership of the beer and wine license. After a hearing on the matter on December 12,1989, the District Court ruled that the property bond was not an acceptable undertaking.

On December 20, 1989, Seman filed another document entitled Posting of Property Bond. In this property bond, Seman pledged a 1959 mobile home and a 1982 Pontiac Bonneville as an undertaking. The property bond was signed by Andrew Seman and Sis Seman, the purported owners of the property.

Berry filed an objection to the second property bond on December 28, 1989, and, on January 3, 1990, a motion to dismiss for failure to file a proper undertaking on appeal. A hearing was held on the two motions, at the close of which the District Court granted the motion to dismiss. Seman appeals from this ruling.

A district court obtains jurisdiction over an appeal from justice court once notice of appeal has been filed and served on the parties, the justice court record has been transmitted to the district court and an undertaking that substantially complies with statutory requirements has been filed. State ex rel. Hackshaw v. District Court, 48 Mont. 477, 479-80, 138 P. 1100, 1100-01 (1914). If an appellant fails to perfect the appeal by neglecting to file an undertaking or filing an ■undertaking that is totally defective, the district court does not obtain jurisdiction over the action and “the appeal is a mere nullity.” State ex. rel Gregory v. District Court, 86 Mont. 396, 398, 284 P. 537, 537 (1930).

The statute delineating the requirements of an undertaking on appeal from justice court to district court provides in pertinent part:

“(1) An appeal from a justice’s or city court is not effectual for any purpose unless an undertaking be filed, with two or more sureties, in a sum equal to twice the amount of the judgment, including costs, when the judgment is for the payment of money. The undertaking must be conditioned, when the action is for the recovery of money, that the appellant will pay the amount of the judgment appealed from and all costs if the appeal be withdrawn or dismissed or the amount of any judgment and all costs that may be recovered against him in the action in the district court.
“(3) When the judgment appealed from directs the delivery of possession of real property, the execution of the same cannot be stayed unless a written undertaking be executed on the part of the appellant, with two or more sureties, to the effect that:
“(a) during the possession of such property by the appellant, he will not commit or suffer to be committed any waste thereon; and
“(b) if the appeal be dismissed or withdrawn or the judgment affirmed or judgment be recovered against him in the action in the district court, he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession thereof or he will pay any judgment and costs that may be recovered against him in said action in the district court, not exceeding a sum to be fixed by the justice or judge of the court from which the appeal is to be taken, which sum must be specified in the ■undertaking.” Section 25-33-201, MCA.

If an adverse party objects to the sufficiency of the sureties, the appellant must justify the amount of the property pledged. Section 25-33-203, MCA. The property’s total value must equal twice the amount of the judgment, including costs. Section 25-33-201(1), MCA. However, when calculating the total worth of the property, the value of the property must be reduced by any statutory exemption that may apply. Section 33-26-102, MCA.

In the present case, the undertaking was defective on its face. Both pieces of property pledged were subject to statutory exemptions. The mobile home, which qualified for a homestead exemption under § 70-32-101, MCA, was allegedly valued at an unencumbered worth of $3,400. It was therefore totally exempt property because a homeowner may claim up to $40,000 of a homestead as exempt from execution. Section 70-32-104, MCA.

The motor vehicle, valued by the Semans at $3,500, was subject to an exemption of $1,200. Section 25-13-609(2), MCA. When the $1,200 exemption was deducted from $3,500, the value of the car equaled $2,300, which was less than the sum of twice the amount of judgment, including costs. Because the total amount of the property pledged in the bond was less than that required by the statute, the undertaking was deficient.

The undertaking was further flawed by Seman’s failure to follow the dictates of § 25-33-201(1), MCA, which requires the appellant to promise that he will pay either 1) the amount of the justice court judgment plus costs if the appeal is withdrawn or dismissed; or 2) the amount of the district court judgment plus costs if he does not prevail in that forum. The undertaking was also defective because Seman neglected to follow the mandates of § 25-33-201(3), MCA, which requires the appellant to file a written statement promising that he will not commit waste upon the property and that he will pay for the value of the use of the property in the event that the judgment of the justice court is affirmed or the appeal is dismissed.

Because Seman failed to comply with the statutory requirements for filing an undertaking, the appeal was not perfected and the District Comb did not obtain jurisdiction over the action. Accordingly, the District Court did not err in dismissing the appeal.

Seman raises several additional issues questioning the rulings and actions of the Justice Court. We need not consider these issues, however, because this Court will not conduct an appellate review of actions taken by the justice court when a party has failed to perfect an appeal in the district court. See State ex rel. Estes v. Justice Court, 129 Mont. 136, 138, 284 P.2d 249, 250 (1955).

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE SHEEHY JUSTICE BARZ

license: Public Domain

text:
    STATE OF ARIZONA, KATHLEEN ROSE SANCIPRIAN, and JERRY D. COOK, Guardian ad litem for JULIET MARGARITE ROSE, a minor child, Petitioners and Respondents, v. ALAN DOUGLAS SASSE, Respondent and Appellant.
    No. 90-172.
    Submitted Sept. 9, 1990.
    Decided Nov. 27, 1990.
    801 P.2d 598.

      Kathleen M. Fritsch, argued, Glendive, for Alan Douglas Sasse.
    Ann Hefenieder argued, Dept, of Social and Rehabilitation Services, Child Support Enforcement Div., Billings, for State of Ariz.
    Jerry D. Cook, Glendive, guardian ad litem for child.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

In this case, Alan Douglas Sasse maintains that the five-year statute of hmitations contained in § 40-6-108(l)(b), MCA, bars the court from declaring that he is the natural father of Juliet Margarite Rose, a minor child. The District Court, Seventh Judicial District, Dawson County, rejected Sasse’s statute of limitations claim and entered judgment declaring him to be the natural father of Juliet Margarite Rose. From that judgment, Sasse appeals. We affirm the District Court.

The minor child, Juliet Margarite Rose, was born in New Jersey on June 21, 1975. At the time of the child’s conception and birth, Kathleen was married to Stelios Kazantzoglou. The mother, Kathleen, had married Stelios in 1971, but was living apart from Stelios and working in Tennessee. At that time, Sasse, age 17, was in the Armed Services and stationed in Tennessee. He frequented the cafe where Kathleen worked and sometime in August or September of 1974, Kathleen invited Alan to her home which resulted in one instance of sexual intercourse. Shortly thereafter, Sasse was transferred to another station.

Kathleen and Stelios divorced in September, 1976, in West Virginia. The court there found that the parties had not lived together as man and wife for over two years and that no children were bom to the marriage. Kathleen resumed her maiden name of Rose. On June 24, 1980, an action was brought in the State of Arizona by that state on behalf of Kathleen (who had now married Cesar Sanciprian) against Sasse for determination of paternity and for child support for Juliet. Sasse made a special appearance in that action and it was dismissed for lack of personal jurisdiction over him.

The instant action was begun by Kathleen with the State of Arizona as a co-plaintiff and was transferred to Montana for prosecution, on September 25, 1987, under the Uniform Reciprocal Enforcement of Support Act, when the child was 12 years old. Sasse filed his answer to the complaint, noting that he had no knowledge of Kathleen’s marital status at the time of their contact since she was living alone in her apartment, but admitting that he had one occasion of sexual intercourse with her in 1974. In his answer, he did not plead the affirmative defense of the statute of limitations.

The District Court appointed a guardian ad litem for the minor child who was joined as a petitioner-by stipulation of the parties.

Pursuant to § 40-6-110, MCA, the District Court caused notice to be given to Stelios Kazantzoglou of the proceedings. He has not intervened or otherwise appeared in the proceedings. The District Court, perceiving that the constitutional validity of the five year statute of limitations contained in § 40-6-108, MCA, was involved in the action, gave notice to the Attorney General of Montana, who decided not to appear.

The District Corut refused to apply the statute of limitations on two principal grounds (1) that Sasse had waived the statute of limitations by not including it in his answer to the complaint, and (2) that in any event, the statute in this case was unconstitutional. We will confine our discussion in this case only to the constitutional issue since we find it dispositive.

By law, Stelios is presumed to be the father of Juliet because he and the mother, Kathleen, were married to each other and the child was born during the marriage. Section 40-6-105(l)(a), MCA. The presumption, however, may be rebutted in an appropriate action by a preponderance of the evidence. Section 40-6-105(2), MCA.

In a case where the existence of the father and child relationship is presumed, an action may be brought for the purpose of declaring the nonexistence of the presumed father and child relationship not later than five years after the child’s birth. Section 40-6-108(l)(b), MCA.

On the other hand, an action to determine the existence or nonexistence of the father and child relationship as to a child who has no statutorily presumed father (for example, born out of wedlock) may be brought by the child up to two years after the child attains the age of majority, or may be brought by a state agency under Title IV-D of the Social Security Act before the child attains the age of majority. Section 40-6-108(3), MCA.

On the basis that § 40-6-108 creates a classification which distinguishes for disparate treatment children with presumed fathers and children without presumed fathers, the District Court held the statute in violation of the equal protection guarantees of Art. II, § 4 of the Montana Constitution and the Fourteenth Amendment of the United States Constitution.

Our cases on this point do not appear to be consistent. In Borchers v. McCarter (1979), 181 Mont. 169, 592 P.2d 941, we had a case where the mother of a child with a presumed father (born in wedlock) brought an action for support of the child against another man as the alleged natural father. Thus, the mother, in order to obtain support, had to establish a parent-child relationship between the child and a nonpresumed person. To do this she had first to rebut the statutory presumption of paternity in the presumed father. Because she had not rebutted the presumption within five years of the child’s birth, this Court held that her claim was barred by the five-year statute of limitations.

In State Department of Revenue v. Wilson (Mont. 1981), [_ Mont. _,] 634 P.2d 172, the natural mother of a child bom out of wedlock (no presumed father) brought an action to determine the paternity of the alleged natural father. At that time, there was a three-year statute of limitations applicable to this class of action. This Court noted the disparate treatment of children bom in wedlock and those bom out of wedlock, in that children born in wedlock could bring an action for support against the presumed father at any time within the majority, whereas, under the three-year statute, the child born out of wedlock lost its right of determination of paternity and child support after three years from birth. We there held that the three-year statute was invalid under the Fourteenth Amendment of the United States Constitution because it was “not substantially related to a permissible state interest.” Wilson, 634 P.2d at 174.

In Matter of W.C. (1983), 206 Mont. 432, 671 P.2d 621, the child was bom in wedlock and thus had a presumed father. The mother and the presumed father were divorced nearly three years after the birth and the final decree stated that the child was bom of the parties’ marriage. Later, the mother married the alleged natural father, who filed an action to determine the parentage of the child. The District Court dismissed the petition on the basis that the alleged natural father was barred by the five-year statute of limitations from challenging the presumed father and child relationship. In upholding the application of the five-year statute of limitations, this Court distinguished the decisions of the United States District Court in Mills v. Habluetzel (1982), 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed. 2d 770 and Pickett v. Brown (1983), 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372, which cases had struck down one-year and two-year statutes of limitations respectively. The distinguishing factor utilized by this Court was that in the case of W.C., there was no question involved of the child’s right to support. Since the action was brought by the natural father who was then supporting the child, this Court held that there was no discrimination as between children born in wedlock and those bom out of wedlock as to their right to claim support.

In the case at bar, the District Court relied on the holding in Wilson, and decided that the five-year statute of limitations in § 46-6-108, MCA, was unconstitutional because it denied the equal protection of the laws “by affording a twenty (20) year limitation period for paternity actions involving illegitimate children and a five (5) year limitation period for paternity actions involving legitimate children.”

In Wilson, this Court utilized the rational basis test in determining the equal protection issue. We here examine the level of test to be used and the application of the statutes of limitations in paternity cases in the light of Clark v. Jeter, 486 U.S. 456, 108 S.Ct. 1910, 100 L.Ed. 2d 465 (1988). There the United States Supreme Court had before it a case involving Pennsylvania law where a child born out of wedlock was required to prove paternity to receive support from the natural father, and the suit to establish paternity was required to be brought within six years of the child’s birth. By contrast, under Pennsylvania law, a child born in wedlock could seek support from his or her parents at any time.

In Clark, the United States Supreme Court determined to apply a level of intermediate scrutiny in determining the equal protection issues. The Court said:

“In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment, U.S. Const., Amendment 14, § 1, we apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. (Citing-cases.) Classifications based on race or national origin, e.g., Loving v. Virginia, 388 U.S. 1, 11 [87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010] (1967) and classifications affecting fundamental rights, e.g., Harer v. Virginia Board of Elections, 383 U.S. 663, 672, [86 S.Ct. 1079, 1084-85, 16 L.Ed.2d 169] (1966), are given the most exacting scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy (citing cases).
“To withstand intermediate scrutiny, a statutory classification must be substantially related to a governmental objective. Consequently, we have invalidated classifications that burden illegitimate children for the sake of punishing the illicit relations of their parents, because ‘visiting this condemnation on the head of an infant is illogical and unjust.’ ” (Citing a case.)

Clark, 486 U.S. at 461, 108 S.Ct. at 1914.

In Clark, the Supreme Court then went on to examine the equal protection issue. It reviewed Mills and Pickett, referred to by this Court in W. C. It then went on to conclude that Pennsylvania’s six-year statute of limitations violated the federal Equal Protection Clause.

Since the case at bar involves a discriminatory classification based on illegitimacy, it is appropriate for us under Clark to examine the equal protection issues here on the level of intermediate scrutiny. On that level, a statutory classification must be substantially related to an important governmental objective. That objective in this case is not hard to determine: The statutory classification is based on the state’s interest in maintaining stable families and in the prevention of stale or fraudulent claims. Countervailing these state’s interests here established is likewise the state’s interest in requiring proper support for all children, lest they become a burden upon the state or others. A limitations statute must also be examined as to whether it affords a reasonable opportunity to bring such suits. In Mills, 456 U.S. at 105, 102 S.Ct. at 1558, the United States Supreme Court noted the unwillingness of a mother to file a paternity action on behalf of her child, which could stem from her relationship with the natural father or from the emotional strain of having an illegitimate child, or even from the desire to avoid community and family disapproval which might continue years after the child is born. That was one of the reasons why the United States Supreme Court in Clark struck down Pennsylvania’s six-year statute.

Other factors also militate against the constitutionality of our five-year statute. Under § 40-6-108, MCA, a child with a presumed father may establish the presumed father’s paternity at any time, which seems to negate any argument respecting stale claims. Moreover, advances in technology relating to genetic markers found in blood tests remove much of the fear of false or fraudulent claims of paternity. We noted the reliability of such blood tests in Rose [no relation to the parties at bar] v. District Court, Eighth Judicial District (1981), 192 Mont. 341, 628 P.2d 662; Wilson, 634 P.2d at 174. Under § 40-6-113(4), MCA, a district court may require the parties to submit to appropriate tests.

Indeed the accuracy of modern blood tests removes many of the justifications asserted for a five-year limitations statute. Such tests can refute false or fraudulent claims of paternity, or provide evidence that might otherwise be unavailable through the passage of time.

This case is prosecuted by the State of Arizona under the Uniform Reciprocal Enforcement of Support Act (URESA). The principal object of URESA actions is to fix the duty of support, an object that is accomplished here. The effect of this decision setting aside the five-year limitations in paternity actions should not be overestimated. We have simply set aside a time-bar that may otherwise have thwarted the truth in URESA or other paternity actions. There is no restraint under this decision that prevents a court in this state from considering other issues that might arise in such actions once the time-bar is lifted. The other provisions of URESA, as enacted in this state, take care of that. Thus our courts are not fenced off under URESA from considering other issues than support that may affect the child, or his adoptive, natural or presumed parents. Section 40-6-116, MCA, gives the Court in URESA actions broad latitude in fixing a judgment:

“40-16-116. Judgment or order. (1) The judgment or order of the Court determining the existence or nonexistence of the parent and child relationship is determined for all purposes.
“3(a) The judgment or order may contain any other provision directed against the appropriate party to the proceeding concerning the custody and guardianship of the child, visitation privileges with the child, the furnishing of bond or other security for the payment of the adjudgment, or any other matter in the best interest of the child.” (Emphasis added.)

So such issues as the best interest of the child can be separately considered by the Court in URESA actions.

On consideration of these relevant factors, we find the constitutional balance is tilted. The five-year limitation in this case is not substantially related to an important governmental objective, since ■under our statutes the limitations vary from case to case.

We therefore determine and hold, and agree with the District Court, that the five-year statute of limitations contained in § 40-6-108(l)(b), MCA, is unconstitutional.

We bring to the attention of the legislature, if it again considers this statute, a provision of the federal Child Support Enforcement Amendments of 1984 which requires all states participating in the federal child support program to have procedures to establish paternity of any child who is less than eighteen years old. 98 Stat. 1307, 42 U.S.C. § 666(a)(5).

Affirmed.

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

JUSTICE BARZ

dissenting.

Section 40-6-108(l)(b), MCA, may not be in conformity with the federal Child Support Enforcement Amendments of 1984 requiring “[p]rocedures which permit the establishment of the paternity of any child at any time ...” 98 Stat. 1307, 42 U.S.C. § 666(a)(5), however, the statute is nonetheless constitutional. The majority asserts that this Court’s earlier decisions regarding this matter are not consistent. I disagree. This Court’s earlier decisions are in fact consistent. It is the majority’s present opinion that does not appear to be consistent.

In Borchers v. McCarter (1979), 181 Mont. 169, 592 P.2d 941, this Court correctly held that the five-year statute of limitations barred the mother from attempting to prove the nonexistence of the presumed father and child relationship. Likewise, this Court correctly held in Matter of W.C. (1983), 206 Mont. 432, 671 P.2d 621, that § 40-6-108(l)(b), MCA, is not unconstitutional and the Montana statutes do not differentiate between children born of wedlock and children bom out of wedlock. The statute rightfully protected the presumed father from having his father and child relationship challenged years later by the natural father.

It was this Court’s decision in State, Department of Revenue v. Wilson (Mont. 1981), [_ Mont. _,] 634 P.2d 172, 38 St.Rep. 1299, holding a three-year statute of limitations unconstitutional because the statute applied to all children born out of wedlock, that pertains to the same reasoning employed by the United States Supreme Court in the line of cases holding these statutes unconstitutional.

In Jimenez v. Weinberger (1974), 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed. 2d 363, the Court struck down laws establishing disabilities on illegitimate children.

In Levy v. Louisiana (1968), 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436, a wrongful death statute, which precluded recovery by illegitimate children, was declared unconstitutional.

In Trimble v. Gordon (1977), 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31, a statute barring illegitimate children from inheriting from an intestate father was held unconstitutional.

In Weber v. Aetna Casualty & Surety Company (1972), 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768, the Court held that illegitimate children were entitled to workman’s compensation benefits relating to the death of the father; and in Gomez v. Perez (1973), 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56, the Court established that illegitimate children have a right to the father’s support.

More recently, the Supreme Court struck down similar statutes in Mills v. Habluetzel (1982), 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770; Pickett v. Brown (1983), 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372; and Clark v. Jeter (1988), 486 U.S. 456, 108 S.Ct. 1910, 100 L.Ed.2d 465. All these statutes deny illegitimate children a right enjoyed by legitimate children, and were found to be -unconstitutional, as was Montana’s statute in Wilson. However, § 40-6-108(l)(b), MCA, can be easily distinguished from the unconstitutional statutes. Notwithstanding that the statute creates a classification of children to be treated differently, the statute sustains more important government purpose than do the unconstitutional statutes and consequently, passes the muster of intermediate scrutiny analysis.

The precise statutory classification created by § 40-6-108(l)(b), MCA, must be accurately recognized before the intermediate scrutiny test can be properly applied. The statute does not draw a line between children born of wedlock and children born out of wedlock, and thereby deprive one class or the other of a constitutional right. It more correctly draws a line between children with presumed fathers who seek support from someone other than the presumed father and all others (“all others” include both children with presumed fathers and children without presumed fathers). The issue then becomes whether or not this classification is substantially related to an important governmental objective. The State’s objective, as the majority states, is to maintain stable families and prevent stale or fraudulent claims. While it could be argued that these interests alone are important enough, there are additional interests that may be more important. The best interests of the child have always been the most salient consideration in determining family matters where children are involved. How can the best interests of the child be served by allowing paternity actions to be brought years after a child has developed a child-parent relationship with the presumed father? Upon careful examination of the statute it becomes obvious that it serves to promote legitimacy in that it ensures that the presumption of legitimacy will not be challenged, once the child reaches the age of five, by anyone. In other words, once the five-year statute has elapsed, if there has been no paternity action, the child’s father is the presumed father. The argument, that a child with a presumed father should have the right to seek support from the natural father at any time up to the age of majority, actually confers upon that child a right other children do not have; the right to choose their father. Such a right is not provided by the constitution. This statute simply requires any challenge to the presumed father’s status to be made within five years or not be made at all. The possibility now exists that the presumed father’s relationship with the child can be disrupted by an alleged natural father at any time. This situation was precisely the kind that occurred in Matter ofW.C., and it was § 40-6-108(l)(b), MCA, that prevented the alleged natural father from disrupting the presumed father’s relationship with his child. Once a child has reached the age of five, there unquestionably has been created a parent-child bond between the presumed father and the child. A paternity action challenging the presinned father and child relationship years after that relationship has been developed can serve only to damage and erode the bond between father and child.

Without § 40-6-108(l)(b), MCA, the possibility also exists that the presumed father will, upon discovering his spouse’s malevolent transgressions years later, claim not to be the natural father and attempt to establish the nonexistence of the presumed father and child relationship. In such a scenario, the mother and child may not, after many passing years, be able to locate the natural father for purposes of establishing a legal entitlement to support. Would it not be in the best interests of the child to continue to receive support from the presumed father and at least have a father?

This is similar to the situation that occurred in Clay v. Clay (Minn. Ct. App. 1986), 397 N.W.2d 571. A presumed father attempted to establish the nonexistence of his paternity during marriage dissolution proceedings. Minnesota’s three-year statute of limitations (identical to ours except it reads three instead of five years )barred the presumed father from doing so and thereby appropriately protected the child. Minn. State Ann. § 257.57(l)(b). The constitutionality of the statute was raised and the appellate court affirmed the lower court’s decision upholding the statute, saying the three-year statute “[w]as designed to promote legitimacy ... [and] [permitting a challenge to the legitimacy of a child more than three years after its birth would defeat the clear statutory purpose of promoting legitimacy.” Clay, 397 N.W.2d at 577. Clay was appealed to the U.S. Supreme Court and the Court dismissed the appeal. (Clay v. Clay (1987), 484 U.S. 804, 108 S.Ct. 49, 98 L.Ed. 2d 14.) Therefore, it appears the United States Supreme Court was not troubled by the constitutionality question.

In Michael H. v. Gerald D. (1989), 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed. 2d 91, the United States Supreme Court looked at a statute providing that a presumption of fatherhood could be rebutted by blood tests, and only if motion for such tests was made within two years from the date of the child’s birth. The Court found the statute to be constitutional and not a violation of the due process clause or the equal protection clause of the United States Constitution.

It must be re-emphasized that § 40-6-108(l)(b), MCA, affects only . children that already have a presumed father. Therefore, the majority’s concern that there be “proper support for all children, lest they become a burden upon the state” is unfounded because only children attempting to seek support from someone other than their presumed father, would be barred by the five-year statute of limitations. The The presumed father would still be legally required to support the child because he too would be barred by the same five-year statute from doing otherwise. The present case is illustrative of this point. The majority opinion notes that the West Virginia court, in granting the divorce between Kathleen and the presumed father, Stelios, found that the parties had no children born to the marriage. If such is the case, then § 40-6-108(l)(b), MCA, has been satisfied and the presumed father’s status is sufficiently rebutted within the five-year period. If such is not the case, then Stelios remains the presumed father and is obligated to support the child; in either event the child is supported.

The statute not only serves to prevent stale or fraudulent claims and help maintain stable families, it also, more importantly, serves to protect the best interests of the child and the rights of the presumed father by promoting legitimacy and the sanctity of the family in which the child was brought up.

The statute is not in conformity with the federal Child Support Enforcement Amendments of 1984 and should be changed, however, it is not unconstitutional as its classification is substantially related to a clearly important government interest.

       A 1989 Amendment rewrote the Minnesota statute to include a longer limitation (one year after the child’s majority) in situations where the presumed father becomes divorced from the child’s mother and is unaware of the child’s birth.


author: JUSTICE SHEEHY

text:
    GARY L. SPAETH, Contestant and Appellant, v. TONY KENDALL, Contestee and Respondent.
    No. 90-435.
    Submitted Oct. 3, 1990.
    Decided Nov. 27, 1990.
    801 P.2d 591.
    John K. Addy, Matovich, Addy & Keller, Billings, for appellant.
    Gary L. Spaeth, Spaeth Law Firm, Red Lodge, pro se.
    Floyd D. Corder, Alexander, Baucus & Linnell, Great Falls, for respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

This cause involves an election contest arising from the results of the primary election for the Democratic Party nomination for Carbon County Attorney. The District Court, Thirteenth Judicial District, Carbon County held that Anthony W. Kendall was the properly elected Democratic nominee, and we affirm.

After the canvass of the votes cast at the primary election June 5, 1990, for the nomination of the Democratic Party candidate for Carbon County Attorney, a recount was conducted on June 12, 1990, and as a result the election was declared a tie between appellant Spaeth and respondent Kendall.

On the night of the election, the election judges excluded one ballot, the exclusion of which is an issue in this appeal; the official canvass on June 7, 1990, likewise excluded this ballot; and the recount on June 12, 1990, also excluded this ballot.

On June 12, 1990, with both parties present, Spaeth and Kendall waived statutory written notice and, pursuant to statute, a drawing of lots took place, and as the result of such drawing Kendall prevailed. Thereafter on June 28,1990, the Carbon County election administrator issued a certificate of nomination certifying that Kendall had been nominated as the Democratic candidate for Carbon County Attorney in the election to be held November 6, 1990.

Thereafter, Spaeth filed a petition for judicial review with the District Corut.

On July 26, 1990, the District Court issued its judgment and ordered, adjudged and decreed as follows:

“1. That the petition for judicial review of petitioner, Gary L. Spaeth, in each of these proceedings is dismissed;
“2. That Tony Kendall is hereby declared nominated as the Democratic candidate for Carbon County Attorney in the primary election held June 5, 1990;
“3. That Tony Kendall is entitled to recover his costs and disbursements but not entitled to recover attorneys fees herein.”

This Court considered the record on appeal and issued an order on October 2, 1990, affirming the judgment of the District Court before we issued a formal opinion due to the rapidly approaching general election of November 6, 1990.

The issue in this case is whether a ballot should have been counted for contestant Spaeth, thereby giving him a one-vote margin of victory in the June 5, 1990 primary election.

We direct attention to the ballot in question, which is reproduced in part below, as marked by the voter in the County Attorney race:

The ballots of the Carbon County primary election had the following legend at the top:

“This ballot should be marked by filling in the oval before the name of each individual or candidate for whom the elector intends to vote.
The elector may write in or affix a preprinted label in the blank spaces provided, or write-in the name of the individual for whom he wishes to vote, and vote by filling in the oval before the name.
TO VOTE YOU MUST BLACKEN THE OVAL ( £3 ) COMPLETELY.”

Section 13-13-117, MCA, describes the method of voting to be employed. Subsection (5) states:

“An elector voting a ballot that will be counted by an optical scan ballot tabulating device shall mark his ballot in the manner prescribed on his ballot.”

The method of marking the ballot is clearly explained and demonstrated on the ballot in question. The voter followed these instructions appropriately in the only other race in which a vote was cast, that for the uncontested Democratic primary candidate for the Second Congressional District Representative. The elector’s choice was clear in that instance, and the District Court properly concluded it should be counted for that race, relying upon § 13-15-202(3), MCA, which states: “A ballot or part of a ballot is void and shall not be counted if the elector’s choice cannot be determined. If part of a ballot is sufficiently plain to determine the elector’s intention, the election judges shall count that part.”

It cannot be determined from the marked ballot what the elector’s choice might have been in the Democratic County Attorney’s race. As the District Court stated, the ballot “does not without substantial question and speculation from its markings show the elector’s intent to vote for Spaeth nor does it lead the mind naturally and without guess to infer the voter’s intent.”

This Court has consistently rejected ballots or portions of ballots where the intention of the voter does not plainly appear. Rennie v. Nistler (1987), 226 Mont. 412, 735 P.2d 1124; Peterson v. Billings (1939), 109 Mont. 390, 96 P.2d 922. In Dickerman v. Gelsthorpe (1897), 19 Mont. 249, 47 P. 999, 1001, this Court noted that “the paramount and ultimate object of all election laws under our system of government is to obtain an honest and fair expression from the voters upon all questions submitted to them.” When such expression cannot be gleaned without speculation, however, the vote is to be voided, to insure a standard of objectivity in our election process.

We affirm the District Court.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, BARZ, HUNT, WEBER and MCDONOUGH concur.


author: JUSTICE WEBER JUSTICE HUNT,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DALE GARBERDING, Defendant and Appellant.
    No. 90-128.
    Submitted on Briefs Sept. 6, 1990.
    Decided Nov. 26, 1990.
    801 P.2d 583.

      Neil M. Leitch, Missoula, Montana, Allen M. Ressler, Browne & Ressler, Seattle, Washington, for defendant and appellant.
    Marc Racicot, Atty. Gen., Jennifer Anders, Asst. Atty. Gen., Helena, Montana, Robert Slomski, Sanders County Atty., Thompson Falls, Montana, for plaintiff and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

After waiving his right to a jury or bench trial, defendant, Dale Garberding (Garberding), submitted his case to the District Court of the Twentieth Judicial District, Sanders County, on the basis of police reports, documents and records on file. He was convicted of criminal possession of dangerous drugs with intent to sell, a felony, and criminal possession of drug paraphernalia, a misdemeanor. From that conviction, Garberding appeals. We affirm.

The issues for our review are:

1. Whether the search warrant was issued upon probable cause?

2. Whether Garberding was entitled to an evidentiary hearing to challenge alleged misstatements or omissions in the search warrant?

3. Whether the State met its burden of proving that Garberding intended to sell the marijuana seized from his residence?

The application for search warrant provided the following facts: In February 1988, Sheriff Alexander (Alexander) of the Sanders County Sheriff’s Office, received a telephone call at his residence from an anonymous female informant (Caller 1). Caller 1 reported that Garberding was growing marijuana in a room below his residence in Heron, Montana. Caller 1 reported that the growing operation was concealed and could not be seen from outside the residence. The caller also reported that Garberding was selling marijuana. Subsequently, Alexander obtained a teletype criminal record of Garberding which showed that he had been convicted of marijuana distribution and was sentenced to three years probation in Seattle, Washington on November 23, 1983.

A deputy sheriff, Gene Arnold (Arnold) spoke with Alexander during the investigation and stated that prior to his employment with the Sanders County Sheriff’s Office, he had been in Garberding’s residence as an employee of Clark Fork Gas to repair a gas furnace. Arnold stated that while in the residence he smelled marijuana.

On March 13,1989, over a year after the call of Caller 1, Alexander received a telephone call from a female informant (Caller 2). Caller 2 advised Alexander that her husband had asked her to contact the sheriff’s office to report that Garberding had a marijuana-growing operation in a room beneath his residence in Heron, Montana, and that there were approximately 20 mature marijuana plants and 20 to 40 new starter plants.

The next day, the husband (Caller 3) of Caller 2 called the sheriff’s office to report that he had been in the Garberding residence in the past two weeks and had personally observed the marijuana grow operation. He informed Alexander that the operation resulted in sales of three to four thousand dollars per week of marijuana. He gave specific directions to the location of the grow operation, stating that it was concealed in a room beneath the house which was accessed by a stairway from the back door. At the bottom of the stairway there were some shelves with jars on them, and that behind these shelves was a swinging door leading to the marijuana-growing operation. Caller 3 also reported that there was a dehydrator device upstairs in the residence used to dry the marijuana in preparation for sale.

After receiving this information, Alexander applied for a search warrant. After finding that there was probable cause, Justice of the Peace Beitz issued a search warrant to search Garberding’s residence for any or all items listed in the warrant. Alexander executed the search warrant on March 15, 1989. The search resulted in the recovery of eleven mature marijuana plants between three to four feet in height; twelve smaller plants, many times in excess of sixty grams in weight; three trays containing marijuana leaves; drug paraphernalia; and various devices used to cultivate marijuana. The next day Alexander and other officers at the Sheriff’s Office cut and weighed one of the mature plants. It weighed 262 grams.

Garberding was charged in a four-count information with the crimes of: Count I — Criminal Possession of Dangerous Drugs with Intent to Sell, a felony, § 45-9-103, MCA; Count II — Criminal Possession of Dangerous Drugs, a felony, § 45-9-102, MCA; Count III — Criminal Sale of Dangerous Drugs, a felony, § 45-9-101, MCA; Count IV — Criminal Possession of Drug Paraphernalia, a misdemeanor, § 45-10-103, MCA. The State dismissed Count III, and the District Court ruled by stipulation of the parties that Count II was a lesser included offense of the felony charged in Count I.

Garberding moved to suppress all items seized from his residence on the ground that the search warrant was issued on less than probable cause. In the alternative, he moved for an evidentiary hearing pursuant to Franks v. Delaware (1978), 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 to establish his claims of omission and misstatements of material fact contained in the search warrant application. The District Comb denied Garberding’s motion to suppress, concluding that the facts alleged in the affidavit, when considered in their totality, sufficiently established probable cause for issuance of the search warrant. In a supplemental order, the District Court ruled that the search warrant application contained no deliberate falsehoods or material omissions which would require excising that information from the application for a determination of probable cause pursuant to Franks.

Garberding waived his right to a jury or bench trial, and agreed to submit the case to the court on the basis of police reports, documents and records on file. He was convicted of criminal possession of dangerous drugs with intent to sell and criminal possession of drug paraphernalia. Garberding was sentenced to 20 years with 10 years suspended on the intent to sell conviction and 6 months in the Sanders County Jail on the possession of drug paraphernalia conviction. The court also designated Garberding a dangerous offender for purposes of parole eligibility. From these convictions, Garberding appeals.

I

Whether the search warrant was issued upon probable cause?

Garberding maintains that the magistrate must determine the existence of probable cause solely from the evidence “in the four corners of the search warrant application”. He contends that the only facts on the application for a search warrant were (1) that he had a 1983 conviction relating to marijuana; (2) a deputy sheriff had smelled marijuana at Garberding’s residence; and (3) undisclosed, unverified and anonymous informants stated he had a grow operation in his home. He urges that these facts failed to establish the probability of criminal activity. He argues that where no information of an informant’s veracity or reliability is provided, and the remaining facts in totality do not otherwise provide a basis to conclude probable cause exists, the warrant fails.

The State maintains that the probable cause requirement need not equate with a prima facie showing of criminal activity, but rather the warrant application need only contain facts sufficient to indicate a probability that incriminating items, namely items reasonably believed to be connected with criminal activity, are located on the property to which entry is sought. The State urges that the test is not whether any individual fact, standing alone, is sufficient to justify issuance of a warrant, but rather that the facts presented in the search warrant application, when considered as a whole, must meet the totality of the circumstances test. The State relies on United States v. Harris (1971), 403 U.S. 573, 581, 583, 91 S.Ct. 2075, 2080, 2081, 29 L.Ed.2d 723, for the proposition that prior criminal activity of a similar nature, even if unverified, enhances an informant’s tip that a person is presently engaged in criminal conduct. Thus, the State argues that under the totality of the circumstances test, Justice of the Peace Beitz was entitled to consider the information presented in the search warrant application as a whole, including past offenses, when assessing probable cause.

In United States v. Harris, the United States Supreme Court stated:

“Corroboration through other sources of information reduced the chances of a reckless or prevaricating tale; that petitioner was a known user of narcotics made the charge against him much less subject to skepticism than would be such a charge against one without such a history. ... Trials are necessarily surrounded with evidentiary rules developed to safeguard men from dubious and unjust convictions. But before the trial we deal only with probabilities that are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.
“We cannot conclude that a policeman’s knowledge of a suspect’s reputation — something that policemen frequently know and a factor that impressed such a legal technician’ as Mr. Justice Frankfurter — is not a ‘practical consideration of everyday life’ upon which an officer (or a magistrate) may properly rely in assessing the reliability of an informant’s tip.”

United States v. Harris, 403 U.S. at 581-583, 91 S.Ct. at 2080-82. The Supreme Court also makes it clear that the “issue in warrant proceedings is not guilt beyond a reasonable doubt but probable cause for believing the occurrence of a crime and the secreting of evidence in specific premises”.

The degree of consistent detail provided by the three informants not only added to the totality of the circumstances to establish probable cause, but also substantiated their reliability. Here, the application showed that Garberding had a previous conviction of marijuana distribution and that there was a fair probability he was still so engaged. We hold that the search warrant was issued upon probable cause.

II

Whether Garberding was entitled to an evidentiary hearing to challenge alleged misstatements or omissions in the search warrant?

Relying on Franks v. Delaware (1978), 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667, Garberding contends the District Court erred when it denied him an evidentiary hearing to evaluate probable cause based on facts which were allegedly omitted from the search warrant application. He maintains that missing was the critical fact that Sheriff Alexander’s failure to reveal the primary informant’s criminal background as a felon and that the informant received a cash reward from the sheriff for his information.

The State urges that even if intentionally omitted by Alexander, the absence of this information does not affect a probable cause determination because the informant was not presumed reliable and additional facts about his criminal history would not have affected his credibility. The State maintains that the accuracy and detail of the primary informant’s tip based on personal observation established the primary informant’s reliability, whether or not he was involved in drugs himself. Furthermore, the State points out that Garberding has presented no facts that show that Alexander intentionally or even recklessly omitted any facts from the application, which Franks, 438 U.S. at 155, 98 S.Ct. at 2676 requires before an evidentiary hearing on probable cause is justified.

The Franks court held:

“[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.”

Franks, 438 U.S. at 156, 98 S.Ct. at 2676. Sheriff Alexander’s failure to reveal the primary informant’s criminal background as a felon and that the informant received a cash reward from the Sheriff for his information does not justify a Franks hearing. The fact that the primary informant was a convicted felon and was paid for his tip does not cast doubt on the reliability of his information. In United States v. Harris, the Supreme Court stated that the fact that an informant admitted to his own criminal activity and was paid for his information added credit to his tip. Aperson of known criminal activity or a person admitting his own criminal activity is not likely to place himself in such a dubious position unless he is telling the truth. Thus, such an omission does not require a Franks hearing. Garberding’s arguments of alleged omissions and misstatements do not persuade this Court that a Franks hearing was necessary. The search warrant showed probable cause for believing the occurrence of a crime and the secreting of evidence in specific premises. See United States v. Harris (1971), 403 U.S. at 584, 91 S.Ct. at 2082. We hold that Garberding was not entitled to a Franks hearing to challenge the search warrant.

Ill

Whether the State met its burden of proving that Garberding intended to sell the marijuana seized from his residence?

Garberding maintains there is no evidence to support a conviction of possession with intent to sell, § 45-9-103, MCA. He maintains that the only factor cited by the court in support of its conclusion that he intended to sell the marijuana was the court’s characterization of his growing operation as “large” and “sophisticated”. He urges that the seizure of eleven plants, even combined with the numerous smaller plants and seeds, does not constitute a large and sophisticated operation.

The State points out that Garberding authorized the District Court by a written waiver to enter findings and conclusions based upon police reports, documents and records. The District Court concluded that:

“5. The Defendant knowingly possessed the marijuana with the intent to sell it.
“6. Defendant’s intent can be inferred from the large quantity of marijuana and the packaging materials, scales, packaged marijuana, and other paraphernalia, and the large scale, intentionally concealed, automated and sophisticated marijuana grow operation.”

The State refers to the annotations to § 45-9-103, MCA, which state that “there is a conclusive presumption of no intent to sell where marijuana is possessed in amounts less than one kilogram.” The State argues the weight of the marijuana alone would have precluded application of the conclusive presumption in Garberding’s favor. It urges that it is customarily the presence of drugs in combination with other items consistent with sales activities and inconsistent with personal use which establish intent to sell. Here, Garberding had in his possession evidence of intent to sell including: 23 confiscated plants; three trays of marijuana leaves; a tray containing marijuana buds being cloned; a box containing drug paraphernalia; and numerous items used to cultivate marijuana, including timing and electrical devices, fans, vents, grow lights, fertilizer, potting soil, a water pump, thermometer, a timer, and a carbon dioxide canister and hoses; bags of marijuana; a seed catalog; and two scales used to weigh marijuana.

Considering the quantity of the marijuana and other items confiscated, we conclude that there is substantial evidence showing an intent to sell. We hold that the State met its burden of proving that Garberding intended to sell the marijuana seized from his residence.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, BARZ and MCDONOUGH concur.

JUSTICE HUNT,

dissenting:

I dissent. The application for search warrant in this case is void of any evidence to support a finding of probable cause to authorize a search of the defendant’s premises.

The “four corners” of the search warrant application consists of certain facts, the total of which should indicate a probability that incriminating items are located on the subject’s premises. While it is true that we have abandoned the two-pronged Aguilar-Spinelli test, “veracity’ and “basis of knowledge,” in favor of the more subjective “totality of the circumstances” test, those “circumstances” must at least possess a reasonable degree of independent integrity in order to contribute to a probable cause conclusion. The three circumstances test in this search warrant application — informants, an aged impression, and a prior conviction — fall pitifully short of that standard.

The majority concluded that the “degree of consistent detail provided by the three informants,” in addition to two other facts, established probable cause. First of all, the three informants did not provide consistent detail. One anonymous person, Caller No. 1, called Alexander thirteen months before the arrest and stated that Garberding was growing and selling marijuana. That information was never checked by Alexander, was certainly not detailed, and was stale by the time of the present search. Further, the anonymity of Caller No. 1 made it impossible to ascertain the “veracity” and “basis of knowledge” of that person, which are highly relevant according to Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527, (1983). All in all, Caller No. 1 fails as a reliable informant for probable cause purposes.

Caller No. 2 told Alexander that her husband had asked her to call and report that Garberding had a marijuana growing operation. Presumably she received the detail contained in her call from her husband who had asked her to make the call; she therefore fails as an independent informant substantiating the reliability of the other two.

Caller No. 3 indeed provided a detailed description of the premises, but a detailed description standing alone does not establish probable cause. As the defendant notes:

“The notion that great detail implies personal observation rather than overhearing of barroom gossip, presupposes an honest informant. If the informant were concocting a story out whole cloth, he could fabricate in fine detail as easily as with rough brush strokes. Minute detail tells us nothing about ‘veracity.’ ”

Stanley v. State, 19 Md.App. 507, 313 A.2d 847, 862 (1974).

The foregoing establishes that the District Court had only one informant on which to rely. The other two facts contained in the four corners of the search warrant application are vague and remote at best.

One of those facts is that a deputy sheriff told Alexander that three or so years ago when he had been an employee of Clark Fork Gas, he had smelled marijuana at that residence while he was repairing a gas furnace. Garberding was not even on the premises at the time, and the deputy said he smelled the marijuana on some boys there who helped him load up a generator.

The other fact on which the majority relies is that Garberding had been convicted of marijuana distribution over five years prior to this arrest. Reliance on that fact not only takes the totality of the circumstances test to the point of the ridiculous, it comes dangerously close to suggesting that persons with previous convictions have fewer Fourth Amendment protections than those without.

In short, today we hold that an over five-year-old prior conviction, combined with a three-year-old sensory impression of the premises, combined with highly questionable informants’ tips, establish probable cause within the meaning of the Fourth Amendment. It is difficult to believe that there could be more far-fetched, remote and questionable facts to support the “totality of circumstances test” than those used by this Court in this case.

We also conclude today that 23 plants and various cultivation materials constitute substantial evidence showing an intent to sell. The cases cited in the State’s brief discuss seizure of numerous individually packaged bags of drugs, packaged in a ready-to-sell manner, as evidence of intent to sell. Unlike any cases cited by the State, a search of Garberding’s residence yielded none of the packaging material found and relied upon in the cited cases. Although Garberding does not fall within the conclusive presumption of “no intent to sell where the amount is under one kilogram,” it cannot conversely be concluded that there is an intent to sell when the amount is over one kilogram — absent a finding of other sale related paraphernalia. The search only revealed items needed to grow and personally consume the marijuana. The amount confiscated itself is not indicative of an intent to sell.

Our decision today invades the Fourth Amendment protection against unreasonable search and seizure to an unconscionable extent. We have effectively replaced probable cause with possible cause — the very intrusion that the authors of the Fourth Amendment intended to prevent. We have further ignored evidentiary precedent in determining what constitutes possession with intent to sell. I would reverse the decision of the District Court.

JUSTICE SHEEHY concurs with the above dissent.


author: JUSTICE BARZ

text:
    DONALD DEAN, Plaintiff and Respondent, v. FRED'S TOWING, MISSOULA COUNTY SHERIFF'S DEPARTMENT, Defendants, and MICHAEL R. HOEPFNER, Defendant and Appellant.
    No. 90-239.
    Submitted on Briefs Sept. 13, 1990.
    Decided Nov. 26, 1990.
    801 P.2d 579.

      Terry G. Sehestedt, Barbara Dockery Tremper, Missoula, for defendant and appellant.
    Morgan Modine, Missoula, for plaintiff and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

Appellant, Michael Hoepfner appeals from the denial of his motion to set aside a default judgment issued by the Fourth Judicial District Court, Missoula County, and from the court’s ruling that funds in a joint bank account traceable to his spouse’s social security benefits are not exempt from execution. We affirm in part, reverse in part and remand.

Appellant raises the following issues on appeal:

1. Did the District Court abuse its discretion in refusing to set aside the default judgment against Hoepfner?

2. Did the District Court err in finding bank deposits traceable to the judgment debtor’s spouse’s social security benefits are not exempt from execution?

In an earlier action independent of the case at bar, appellant Michael Hoepfner recovered a judgment by default in the Missoula County Justice Court against Bob and Edella Icenhower. The Judgment, entered June 1,1989, arose from the Icenhower’s failure to pay for a 1977 Freightliner truck they were purchasing from Hoepfner. On the same day, the Justice Court issued a writ of execution directing the Missoula County Sheriff to levy against the Icenhower’s non-exempt assets to satisfy the judgment.

On June 13, 1989, pursuant to the writ, a sheriff’s deputy seized the Freightliner truck. The truck was located on property owned by respondent Donald Dean. Dean runs an auto repair shop on the property and had apparently performed repairs on the Freightliner. In seizing the truck the deputy found it necessary to enlist the services of Fred’s Towing. The truck was towed to a storage area and later sold at a sheriff’s sale at which Hoepfner was the successful bidder.

On July 17, 1989, Dean filed a complaint in the District Court seeking recovery against Hoepfner, the Missoula County Sheriff’s Department and Fred’s Towing, jointly and severally. Dean’s complaint alleged that personal and real property of his were damaged in the course of seizing the Freightliner; that Dean had an agister’s lien against the Freightliner for repairs performed; and that Hoepfner paid less than fair market value for the truck at the sheriff’s sale.

Hoepfner and Fred Burgess of Fred’s Towing were both served with summons and complaint on July 25, 1989. On August 1, 1989, a temporary restraining order was served upon Hoepfner, restraining him from selling, transferring, or otherwise disposing of the Freightliner truck. On August 2, 1989, Hoepfner sent a letter to Dean’s attorney regarding the lawsuit and sent a copy to the Justice Court rather than the District Court. The letter never reached the proper court file.

Hoepfner never made a formal appearance in the cause and on December 13, 1989, entries of default and default judgment were entered against him.

Following denial of Hoepfner’s motion to set aside the default judgment the court conducted a hearing to determine whether the money seized from Mr. and Mrs. Hoepiner’s joint bank account was exempt from execution. The court found that Mr. Hoepfner’s social security benefits were exempt, but that his spouse’s social security benefits, totaling $244, were properly- seized pursuant to the writ of execution.

I.

Did the District Court abuse its discretion in failing to set aside the default judgment entered against Hoepfner?

The Montana Rules of Civil Procedure allow for the setting aside of a default judgment:

“For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).”

Rule 55(c), M.R.Civ.P.

“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) when a defendant has been personally served, whether in lieu of publication or not, not more than 60 days after the judgment, order or proceeding was entered or taken, or, in a case where notice of entry of judgment is required by Rule 77(d), not more than 60 days after service of notice of entry of judgment.... This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as may be required by law, or to set aside a judgment for fraud upon the court.”

Rule 60(b), M.R.Civ.P.

This Court has previously specified what is necessary to set aside a default judgment under the “excusable neglect” standard of Rule 60(b), M.R.Civ.P.:

“In order to justify the district court in granting the motion, the defendant was required to show: (a) That he proceeded with diligence; (b) his excusable neglect; (c) that the judgment, if permitted to stand, will affect him injuriously, and that he has a defense to plaintiff’s cause of action upon the merits.” (Citation omitted.)

Kootenai Corp. v. Dayton (1979), 184 Mont. 19, 26, 601 P.2d 47, 51.

In determining whether the lower court abused its discretion we must look at Hoepfner’s actions and compare them to the “excusable neglect” standard. We find that the second requirement, the question of excusable neglect, is dispositive of this issue. Hoepfner argues that his neglect was excusable because he believed that his letter to Dean’s attorney sufficed as his answer and that a copy of his letter was inadvertently sent to the wrong court.

We have reviewed Mr. Hoepfiier’s letter to Dean’s attorney and conclude that it does not serve as a basis for a finding of excusable neglect. The letter written by Hoepfner was one of explanation only and does not constitute a legitimate response to Dean’s complaint. Nor is there any showing that the letter was delivered in a manner reasonably calculated to be filed as an answer. This conclusion is bolstered by the fact that in his affidavit in support of the motion to set aside the default judgment, Hoepfner made the following statements contradicting his subsequent assertion that he believed the letter sufficed as an answer:

“2. Shortly after he was served with Summons and Complaint in this cause he met with Fred Burgess of Fred’s Towing, another Defendant, herein.
“3. At said meeting he and Fred Burgess prepared a handwritten response to the Complaint and each signed it. Said document was left with Fred Burgess and it was Affiant’s understanding that Fred Burgess would and in fact had thereafter filed such response or answer with the Clerk of this Court.”

No such document was ever filed with the court. Dean’s attorney did receive a letter from Fred Burgess, which was signed only by Burgess, but this letter was one of warning of dire consequences in the event that Dean continued with his lawsuit and not an answer. Moreover, it can hardly be said that Hoepfner was unaware of court procedures when Hoepfner himself used a default judgment in the underlying action.

Hoepfner further contends that the letter he sent to Dean’s attorney constituted a sufficient appearance in the cause to have been entitled to notice prior to the entry of judgment by default pursuant to Rule 55(b)(2), M.R.Civ.P. Hoepfner argues that Dean’s failure to provide notice is a serious procedural error which requires setting aside the default judgment.

Rule 55(b) (2), M.R.Civ.P, requires three days written notice of the motion for judgment by default if the party against whom default judgment is sought has appeared in the action. However, assuming arguendo that Hoepfner had made a sufficient appearance to be entitled to notice, failure to give notice to the defaulting party does not automatically entitle the defaulting party to relief, but is merely one consideration to be weighed by the court in exercising its discretion in determining a Rule 55(c) motion. In re Marriage of Neneman (1985), 217 Mont. 155, 160, 703 P.2d 164, 167.

While it is true that default judgments are not favored, Lords v. Newman (1984), 212 Mont. 359, 363, 688 P.2d 290, 293, we agree with the District Court that the circumstances surrounding this case do not warrant setting aside the default judgment.

We hold that the District Court did not abuse its discretion in refusing to set aside the default judgment against Hoepfner.

II.

Did the District Court err in finding bank deposits traceable to the judgment debtor’s spouse’s social security benefits are not exempt from execution?

The District Court, applying § 25-13-608, MCA, found that bank deposits traceable to Hoepfner’s social security benefits are exempt from execution. Section 25-13-608, MCA, provides in part: “(1) A judgment debtor is entitled to exemption from execution of the following ... (b) benefits the judgment debtor has received or is entitled to receive under federal social security or local public assistance legislation ...” The District Court, focusing on the language “judgment debtor” in the statute, found that social security benefits belonging to the spouse of the judgment debtor, and similarly traced to the parties’joint bank account, are not exempt from execution.

Hoepfner cites 42 U.S.C. § 407(a), arguing that federal law mandates the spouse’s social security benefits be found exempt from execution. We agree.

With respect to social security benefits, 42 U.S.C. § 407(a) provides in part:

“[N]one of the moneys paid or payable or rights existing under this title shall be subject to execution, levy, attachment, garnishment, or other legal process ...”

In Philpott v. Essex County Welfare Board (1973), 409 U.S. 413, 93 S.Ct. 590, 34 L.Ed. 2d 608, the United States Supreme Court held that social security funds deposited in a savings account still maintain their exempt character. Additionally, in interpreting 42 U.S.C. § 407(a), the United States Supreme Court stated:

“But § 407 does not refer to any ‘claim of creditors’; it imposes a broad bar against the use of any legal process to reach all social security benefits. That is broad enough to include all claimants ...” Philpott, 409 U.S. at 416-17, 93 S.Ct. at 592. We note, however, that the prohibition contained in 42 U.S.C. § 407(a) is subject to certain exceptions. For example, 42 U.S.C. § 659 provides that notwithstanding § 407, money due or payable from the United States to any individual shall be subject to legal process brought to enforce the individual’s legal obligations to provide child support or make alimony payments.

The Ohio Court of Appeals, in General Motors Acceptance Corporation v. Deskins (1984) 16 Ohio App.3d 132, 474 N.E.2d 1207, addressed the issue of how to handle commingling of exempt and non-exempt funds in a joint bank account:

“We see no reason why the ‘tracing’ of funds as used here to determine what amount in an account is attributable to exempt funds should not apply with equal force to exempt social security funds in an account... if sums [are] exempt at their source they remain exempt even though commingled with non-exempt funds, as long as the exempt source of the funds [are] reasonably traceable. (Citation omitted.)”

General Motors Acceptance Corp., 474 N.E.2d at 1211-12.

In light of the above, we find that in circumstances such as those presented in this case, social security benefits deposited in bank accounts, if reasonably traceable, are exempt from execution.

Montana recognizes tracing of exempt property in § 25-13-610, MCA. Pursuant to § 25-13-610, MCA, when exempt property under § 25-13-608, MCA, has been converted to cash and deposited in a bank account, it remains exempt for up to six months to the extent the bank deposit can be traced to such property by any reasonable accounting method.

There is no question in the instant case that the spouse’s social security benefits are reasonably traceable. At the hearing Hoepfner elected to account for the sums present in the joint account on' a “first-in-first-out” basis. The evidence at the hearing clearly showed that the $2,353.09 on deposit at the time the account was seized could be traced to the following sources: (1) wages, interest, and other, $912.42; (2) Hoepfner’s social security benefits, $1,196.67; and (3) Hoepfner’s spouse’s social security benefits, $244.00.

We hold the District Court erred in finding bank deposits traceable to the judgment debtor’s spouse’s social security benefits are not exempt from execution.

Affirmed in part, reversed in part and remanded for proceedings consistent with this opinion.

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


author: JUSTICE WEBER

text:
    ROCKWOOD SCOTT BROWN and DEBORA A. BROWN, husband and wife, Plaintiffs and Respondents. v. DOUGLAS E. TINTINGER, PEARL TINTINGER and THOMAS TINTINGER, Defendants and Appellants.
    No. 90-225.
    Submitted on Briefs Oct. 11, 1990.
    Decided Nov. 29, 1990.
    801 P.2d 607.

      Carl A. Hatch, Small, Hatch, Doubek & Pyfer, Helena, for defendants and appellants.
    Peter Michael Meloy, Meloy Law Firm, Helena, for plaintiffs and respondents.
   JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiffs, Rockford and Debora Brown (Browns), filed this suit to quiet title to their real property and particularly to determine whether defendants, Douglas, Pearl, and Thomas Tintinger (Tintingers), have a perfected prescriptive easement across Browns’ property. Tintingers cross claimed, claiming a right of access across Browns’ property, intentional attempt by Browns to deprive them of use of the access, and seeking damages caused by the deprivation of access. Following a non-jury trial, the District Court for the First Judicial District, Lewis and Clark County, entered judgment for the plaintiffs, quieting title in plaintiffs as owners in fee simple, and declaring that defendants have no right, title, or interest in or upon plaintiffs’ property. Defendants appeal. We affirm.

The issues are:

1. Did the District Court err in concluding that the Quiet Title Decree issued in 1948 extinguished any alleged easement claimed by Tintingers?

2. Did the District Court err in concluding that following the Quiet Title Decree in 1948 the use of the road by the Tintingers was permissive and not adverse?

In 1984 the Browns purchased a parcel of land situated in Lewis and Clark County. Tintingers are the owners of a patented mining claim known as the “Independent,” and have the right to mine on an unpatented claim known as the “Good Chance.” The Independent and Good Chance are located north of the property owned by the Browns. A strip of Forest Service land lies between the mining claims and Browns’ property. An unimproved dirt road begins at a public road on the south boundary of the Browns’ property, crosses Browns’ property, then crosses the Forest Service strip and ends at the Independent.

Various members of the Tintinger family used this dirt road for access to the Independent and Good Chance mining claims for over 50 years. In 1947, the Henkes, previous owners of the Browns’ property, brought a quiet title action naming all previous owners of the property together with:

“any and all persons unknown who claim or may claim any right, title, or interest in, or lien or encumbrance upon the real property described in this complaint, or any part thereof, adverse to the plaintiff’s [sic] title thereto, whether such claim or possible claim be present or contingent, including any claim or possible claim of dower, inchoate or accrued.”

A Decree of Quiet Title for the Henkes was issued February 17,1948.

Eugene Menth subsequently pm-chased the property from the Henkes. Menth deeded the property to Norwest Bank in lieu of foreclosure in 1982. The Browns pmchased the property from Norw-est Bank in 1984 and in November of that year the Browns erected a chain barrier across the entrance to the road to keep out hunters and Christmas tree cutters.

In May of 1985, the Tintingers called the Browns and demanded access to the road. The Browns refused to give permission and the Tintingers used the road without permission until 1987 for their annual assessment work at the mines. In 1987, Browns gave permission to the Tintingers to use the access for the annual assessment work. In April 1988, the Browns filed this action to prevent the Tintingers’ farther use of the road.

I

Did the District Comt err in concluding that the Quiet Title Decree issued in 1948 extinguished any alleged easement claimed by Tintingers?

None of the Tintingers were named as defendants in the 1948 Quiet Title Action. The District Court concluded that any easement that might have existed in behalf of the Tintingers was extinguished under the Decree’s language “any and all persons unknown who claim or may claim any right, title, or interest in, or lien or encumbrance upon ...” The court’s Conclusion of Law No. 2 states:

“The decree of quiet title issued in 1948 extinguished any alleged easement claimed by the Tintingers. The decree, by its own language, extinguished any lien or encumbrance on the property adverse to the owner. The Tintingers are bound by the decree, pursuant to Section 70-28-109, MCA, which provides:
“ ‘Every person made a defendant to such action by name and every unknown claimant or possible claimant upon whom service has been made by publication ... shall be bound by the judgment or decree entered in such action, subject to the right of any such defendants to apply for relief in any manner provided by the statutes applicable to the case of a defaulting defendant served only by publication.’ (Emphasis added.)
“The record does not reveal any legal action taken by the Tintingers to challenge the quiet title decree on the basis of faulty or invalid service of process pursuant to the above-quoted statute.”

The Tintingers argue that the Henkes obviously knew the Tintingers were using the road as access to their mining claims and therefore they were not unknown or possible claimants, and that by law the Henkes should have named the Tintingers as defendants if they intended to extinguish the easement.

There is no evidence in the record showing that the Henkes knew of the Tintingers use. Absent knowledge by Henkes, the “persons unknown” language in the Decree extinguished, any right, title, or interest Tintingers may have or may have been attempting to perfect during the period prior to the 1948 Quiet Title Decree.

We hold the District Court did not err in concluding that the Quiet Title Decree issued in 1948 extinguished any alleged easement claimed by Tintingers.

II

Did the District Court err in concluding that following the Quiet Title Decree in 1948 the use of the road by the Tintingers was permissive and not adverse?

In order to establish a prescriptive easement, the Tintingers must show open, notorious, exclusive, adverse, continuous and uninterrupted use for the full statutory period. Downing v. Grover (1989), 237 Mont. 172, 175, 772 P.2d 850, 852. The statutory period is five years. Section 70-19-401, MCA. All elements of prescriptive easement must be proved by a preponderance of the evidence or the claim will fail. Downing at 175, 772 P.2d at 852. All elements must be proved in a case such as this because “one who has legal title should not be forced to give up what is rightfully his without the opportunity to know that his title is in jeopardy and that he can fight for it.” Id.

In order to perfect a prescriptive easement, the Tintingers must establish the elements during a 5 year period following the 1948 Quiet Title Decree. The Henkes sold the property to Menth in 1951. Menth testified:

“Q. During your ownership of the land, do you ever remember seeing Mr. Tintinger using that road?
“A. Yes.
“Q. How often did you see him use it, if you can remember?
“A. To my knowledge, not very often. Once a month. I don’t know. I have no idea, really.
“Q. Did you have any conversations with him —
“A. Sure. I talked to him all the time.
“Q. While he was up in the vicinity of your property?
“A. Sure. We were good friends.
“Q. What was your understanding about his use of that road? Did he have your permission to use it?
“A. Definitely.”

The standard of review for a civil case for a judge sitting without a jury is whether or not the District Court’s findings are clearly erroneous. Dennis v. Tomahawk Services, Inc. (1989), 235 Mont. 378, 379, 767 P.2d 346, 347. This Court will not substitute its judgment for that of the trial court absent that showing. Id. Menth’s testimony is sufficient to support the District Court’s finding that Tintingers’ use of the road from 1951 to 1982 was permissive and not adverse.

In 1982 Menth deeded the property to Norwest Bank and Norwest Bank sold the property to the Browns in 1984. In November 1984, the Browns erected the chain barrier, and in May of 1985 the Browns refused to give permission to the Tintingers to use the road. In 1987 the Browns gave the Tintingers permission to use the road for their yearly assessment work only.

There is no evidence that Norwest Bank had any notice whatsoever that the Tintingers were using the road either permissively nor adversely. Likewise there is no evidence that the Browns knew of any permissive or adverse use of the road by the Tintingers until May of 1985. The period of time from May 1985 until the filing of this action in April, 1988 is less than the statutory five-year period to establish a prescriptive easement and thus it is immaterial whether Tintingers’ use was adverse or permissive during this period. Therefore, the Tintingers have not established an easement by prescription over the Browns’ property.

We hold that the District Court did not err in concluding that following the Quiet Title Decree in 1948, the use of the road by the Tintingers was permissive and not adverse.

Affirmed.

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


text:
    SAMUEL GARRETT, Plaintiff and Appellant, v. PACCAR FINANCIAL CORPORATION, a Washington Corporation, and OH, MONTANA, INC., d/b/a PERSONAL COLLECTIONS, and DONALD M. LEACH d/b/a Personal Collections, Defendants and Respondents.
    No. 90-337.
    Submitted on Briefs Oct. 19, 1990.
    Decided Nov. 29, 1990.
    801 P.2d 605.
    Gary L. Spaeth, Red Lodge, for plaintiff and appellant.
    Stephen C. Mackey, Towe, Ball, Enright & Mackey, Billings, for PACCAR Financial Corp.

      Stephen C. Pohl, Bozeman, for Oh, Montana, Inc.
    Calvin L. Braaksma, Landoe, Brown, Planalp & Kommers, Bozeman, for Donald M. Leach.
   JUSTICE WEBER

delivered the Opinion of the Court.

The plaintiff, Samuel Garrett (Garrett), initiated this suit to recover damages sustained during the alleged wrongful possession of Garrett’s semi-truck. The District Court for the Eighteenth Judicial District, Gallatin County, granted summary judgment under Rules 36(a) and 56 of the Montana Riiles of Civil Procedure. Plaintiff appeals. We affirm.

The issue is did the District Court err when it granted the defendants’ motion for summary judgment under Rules 36(a) and 56, M.R.Civ.P?

The relevant facts to the issue before this Court are procedural. On January 11, 1989, defendant PACCAR Financial Corporation (PFC), served its first written interrogatories on Garrett. When Garrett failed to respond after ten months, PFC served Garrett with a set of Requests for Admissions on October 11, 1989. The Requests for Admissions were based on the prior unanswered interrogatories and were aimed at all of the material allegations of Garrett’s complaint. Garrett failed to respond to the Request for Admissions and three months later, on January 4, 1990, PFC moved the court for summary judgment on the theory that unanswered admissions are deemed admitted after 30 days under Rule 36(a), M.R.Civ.P.

Defendants, Donald M. Leach (Leach) and Oh, Montana, Inc. (Oh, Montana) joined PFC’s motion based on the theory that Garrett’s deemed admissions address the ultimate issues of fact in the case and are totally dispositive of Garrett’s claims as to all defendants.

The record shows that Garrett also failed to comply with discovery as to defendant Leach. On July 26,1989, Leach served Garrett with interrogatories and Requests for Production of Documents. When Garrett failed to respond by October 6,1989, Leach filed a Motion to Compel Discovery pursuant to Rule 37(a), M.R.Civ.P. On November 8.1989, the court ordered Garrett to file the requested documents by November 17,1989, and to produce income tax returns by December 15.1989. To date Garrett has failed to produce the income tax returns as ordered by the court.

At the hearing on the motion for summary judgment, Garrett’s counsel’s stated reasons for failure to respond included the following: Garrett is a truck driver and fails to maintain contact with his attorney, Garrett experienced personal problems and illness and death in the family, counsel assumed this case from his associate who had left the firm, counsel is busy with other matters, and counsel believed he had a conversation with PFC’s counsel which led him to believe he had an extension. At the time of the hearing on January 26, 1990, Garrett had not filed any brief in opposition to summary judgment and still had not filed any answers to interrogatories or requests for admission.

The District Court deemed the request for admissions as admitted under Rule 36(a), M.R.CiwP., and granted summary judgment as to all defendants under Rule 56, M.R.Civ.P.

Did the District Court err when it granted the defendants’ motion for summary judgment under Rules 36(a) and 56, M.R.Civ.P.?

Rule 36(a) states in relevant part:

“The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection....”

PFC’s Interrogatories had gone unanswered for approximately a year and the Requests for Admissions had gone unanswered for three months. At no time had Garrett attempted to file answers or to file a request for permission from the court for a longer time as required ■under Rule 36(a). Garrett’s deemed admission leaves no genuine issues of material fact as to liability on the part of any defendant. Delay or failure to respond to the requests for admissions justifies summary judgment under Rule 56, M.R.Civ.P. Morast v. Auble (1974), 164 Mont. 100, 105, 519 P.2d 157, 160.

The standard of review is set forth in Morast as follows:

“[A] litigant’s right to file a late response [to requests for admissions] is ‘not a matter of right,’ but is rather ‘a matter resting within the discretion of the district court and will not be disturbed on appeal unless there is a showing of manifest abuse of discretion.’ ”

Id. at 105, 519 P.2d at 159.

A review of the record reveals no evidence showing a manifest abuse of discretion. We hold the District Court did not err when it granted the defendants’ motion for summary judgment under Rules 36(a) and 56 of the Montana Rules of Civil Procedure.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, HUNT and MCDONOUGH concur.