author: MR. CHIEF JUSTICE TURNAGE MR. JUSTICE SHEEHY,

text:
    DAVID VERNON KAUFFMAN, M.D., Plaintiff and Appellant, v. DEPARTMENT OF COMMERCE, BOARD OF MEDICAL EXAMINERS, A political subdivision of the State of Montana, Defendant and Respondent.
    No. 87-226.
    Submitted Nov. 3, 1987.
    Decided Nov. 20, 1987.
    746 P.2d 103.

      Leaphart Law Firm, C.W. Leaphart, Jr., argued, Helena, for plaintiff and appellant.
    Harrison, Loendorf & Poston, John P. Poston argued, Helena, for defendant and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Petitioner and appellant David Vernon Kauffman, M.D., appeals an order of the Eleventh Judicial District, Flathead County, affirming the decision of the State Board of Medical Examiners (Board) to revoke Kauffman’s medical license. We affirm.

Two issues are presented for our review:

1. Did the Board abuse its discretion when it revoked Kauffman’s medical license?

2. Was appellant Kauffman prejudiced when the Board offered Exhibit 8 into evidence?

Appellant, Dr. David Kauffman, is a graduate of Eastern Mennonite College, Harrisburg, Virginia, and Hahnemann Medical College, San Francisco, California. In 1957 Kauffman interned at Sacred Heart Hospital in Spokane, Washington. Since 1959, he has practiced medicine in Whitefish, Montana.

Following the death of two infant patients in 1984, the Board restricted Dr. Kauffman’s license by barring him from treating obstetrical patients and providing neo-natal care to infants. The Board alleged three instances of unprofessional conduct. Following continuance, Dr. Kauffman responded by denying any unprofessional conduct.

On October 25, 1985, the Board issued an amended notice of hearing based upon the same allegations. The Board reconfirmed that Dr. Kauffman was restricted from practicing obstetrical and neo-natal care. The amended notice also contained the following allegations:

IV. Dr. Kauffman aided and abetted another person in the unlicensed practice of medicine;

V. Dr. Kauffman falsely, fraudulently and deceptively submitted bills to the Montana Social and Rehabilitative Services (SRS);

VI. Dr. Kauffman continued to provide prenatal care to a patient following the original restriction order; and

VII. Dr. Kauffman provided care for a new obstetrics patient following the original restriction order.

Contested hearings were held March 17, 18, 19 and March 30 and April 1, 1986. On June 23, 1986, another hearing was held before the full Board of Medical Examiners. The Board issued its final order on June 27, 1986, revoking Dr. Kauffman’s license to practice medicine. On April 1, 1987, the Honorable Michael H. Keedy affirmed the Board’s order.

In Count I, the Board alleged that Dr. Kauffman committed negligent medical practice when caring for Susan Buck and her unborn baby. The Board determined that:

(1) Dr. Kauffman’s birthing room was not adequately equipped;

(2) obstetrical patients were not fully informed of the process of office birthing; and

(3) Dr. Kauffman did not have a protocol for complications.

The Board also determined that Dr. Kauffman committed negligence and gross malpractice when the unborn baby’s umbilical cord became prolapsed and Dr. Kauffman failed to:

(1) leave Susan Buck in the care of qualified and competent personnel;

(2) administer oxygen;

(3) place Susan Buck in the knee-chest position;

(4) transport Susan Buck to the North Valley Hospital in Whitefish (instead of Kalispell Regional Hospital),

(5) accompany Susan Buck to the hospital and push on the head of the baby and monitor the baby.

In Count II, the Board alleged that Dr. Kauffman committed negligent medical practice and gross medical malpractice when caring for Kimberly Koppen and her unborn baby. The Board found that Dr. Kauffman committed negligence and gross malpractice when Dr. Kauffman failed to:

(1) test Kimberly for gestational diabetes;

(2) perform non-stress testing after Kimberly Koppen reached full term;

(3) recognize Kimberly was a complicated patient with a family history of diabetes and was post-term;

(4) adequately monitor the unborn baby;

(5) deliver the infant once fetal distress was obvious.

In Count III, the Board alleged that Dr. Kauffman misled some of his obstetrical patients when he informed them that he would have hospital privileges before the birth of their children. Dr. Kauffman did not refute the Board’s allegation.

In Count IV, the Board found Dr. Kauffman not guilty of aiding and abetting an unlicensed physician in the practice of medicine. In Count V, the Board found Dr. Kauffman not guilty of false, fraudulent or deceptive billing practices.

In Counts VI and VII the Board found Dr. Kauffman guilty of violating the Board’s order that Dr. Kauffman discontinue to provide obstetrical care. Dr. Kauffman did not dispute the Board’s finding.

Issue 1

Did the Board abuse its discretion when it revoked Kauffman’s medical license?

Our standard when reviewing contested cases under the Montana Administrative Procedures Act (MAPA) is found in Section 2-4-704, MCA, which provides in pertinent part:

“(2) The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decision are:
“(a) in violation of constitutional or statutory provisions;
“(b) in excess of the statutory authority of the agency;
“(c) made upon unlawful procedure;
“(d) affected by other error of Law;
“(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;
“(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
“(g) because findings of fact, upon issues essential to the decision, were not made although requested. [Emphasis added.]”

Appellant Kauffman does not challenge any of the Board’s findings of fact or conclusions of law. Further, Dr. Kauffman does not challenge the Board’s authority to revoke his medical license. Rather, appellant Kauffman contends the Board acted in a punitive, rather than a protective manner when it revoked his license. In re Matter of the Denial of License of Rudolph E. White (Mont. 1986), [220 Mont. 36,] 712 P.2d 1344, 1346, 43 St.Rep. 151, 154; Section 37-3-101, MCA. Appellant argues that a license restriction rather than a license revocation is the proper remedy.

The Board made 134 findings of fact which were adopted by the District Court. A review of the Board’s findings reveals that Dr. Kauffman practiced medicine in a “half-hearted” manner in nearly all areas of his medical practice. Clearly, the Board’s decision is based on reliable, probative and substantial evidence, Section 2-4-704(2)(e), MCA.

In the Board’s conclusions of law, the serious nature of this proceeding is addressed:

“Underlying this proceeding is the unspoken problem of terminating this doctor’s right to practice his chosen profession, and the havoc that will bring to him and his family. No doubt this is a point which must be seriously considered. However, the upheaval revocation will cause the Kauffmans is a mere inconvenience when compared to the agony caused the two families by the deaths of their infants.
“Dr. Kauffman’s care and treatment of S.B. and K.K. are each by themselves enough to invoke revocation of Dr. Kauffman’s license to practice medicine. However, the evidence established that the unfortunate deaths of the two infants were no quirks of fate occurring in the practice of an otherwise competent and conscientious physician. Rather, they were all but inevitáble events in view of the lax and half-hearted manner in which Dr. Kauffman practiced medicine. Whether this is a result of disinterest or inability is only of secondary interest.”

As a court of last resort, we appreciate the gravity of removing appellant’s means of livelihood. However, we are bound by Section 2-4-704, MCA, to affirm the findings of fact and conclusions of law of the Board and the District Court in absence of an abuse of discretion. Yanzick v. School Dist. No. 23 (1982), 196 Mont. 375, 388, 641 P.2d 431, 439. We hold the District Court did. not abuse its discretion when it revoked appellant’s license to practice medicine.

Issue 2

Was appellant Kauffman prejudiced when the Board offered Exhibit 8 into evidence?

Appellant contends Exhibit 8, a 1978 letter from the Board to Dr. Kauffman, was introduced at the hearing without proper prehearing exchange. Section 2-4-612, MCA. The hearing examiner initially admitted Exhibit 8 over appellant’s objection. In his findings of fact and conclusions of law, the hearing examiner reversed his ruling and rejected Exhibit 8. In doing so, the hearing examiner stated:

“I now reverse that ruling. Exhibit 8 is excluded from the evidence and was not considered by me in preparation of these findings of fact and conclusions of law. In light of the overwhelming evidence it would have made no difference.”

In light of the above-mentioned statement, we hold the appellant Kauffman was not prejudiced by introduction of Exhibit 8. The issue at hand is similar to a bench trial, in which the trier of fact routinely reviews proposed exhibits before admitting or rejecting them. Appellant’s argument is unpersuasive.

We suggest that Dr. Kauffman continue his medical education and training if he desires to move the Board of Medical Examiners to reinstate his medical license.

Affirmed.

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

MR. JUSTICE SHEEHY,

dissenting:

Dr. Kauffman has limited his appeal in this case to the breadth of the order revoking his medical license. He contends that out of his broad general practice, as a general practitioner, the issues on which the Board of Medical Examiners found against him are limited to the narrow field of his practicing obstetrics-gynecology. The findings of the Board substantiate his argument. Apart from the problems that developed from his practice of obstetrics, no complaint exists against him with respect to any other portion of his general practice which over nearly 30 years, has been extensively broad.

On review from an agency decision under the Montana Administrative Procedure Act (Section 2-4-704, MCA), “the standard of review to be applied to findings of fact by a reviewing court is one of clearly erroneous”; conclusions of law are subject to an “abuse of discretion review.” Billings v. Billings Fire Fighters Local No. 521 (1982), 200 Mont. 421, 651 P.2d 627. It appears to me to be an abuse of discretion to revoke completely Dr. Kauffman’s license to practice medicine, when, in the light of the objections made, a fair result could be obtained by simply restricting him from the practice of obstetrics-gynecology. The Board has power to do so under Section 37-3-323(4) (e), MCA. When the Board disciplines a practitioner, it may “take any other action in relation to disciplining him as the Board in its discretion considers proper.”

There is power under our statutes for the Board to enforce a partial restrictive order or suspension of the right to practice. A violation of the Board’s order restricting such practice is punishable as a misdemeanor under Section 37-3-325, MCA. That course was not followed here by the Board, although if the Board’s allegations were true, a procedure under Section 37-3-325, MCA, would be more effective in enforcing the Board’s suspension order. The ensuing action of the Board in completely revoking his license to practice, rather than a partial suspension relating to the field in which it charged incompetence has a punitive smack. Punishment is the business of courts and not of administrative agencies. In Matter of White (Mont. 1986), [220 Mont. 36,] 712 P.2d 1344, 43 St.Rep. 151, we found the denial of a nursing license to be hypertechnical and an abuse of discretion by the agency. In White we also pointed that the intention of the legislature should be served by licensing agencies in the discharge of their duties. Here, the privilege of the practice of medicine should be regulated “to the end that the public shall be properly protected against unprofessional, improper, unauthorized, and unqualified practice of medicine” (Section 37-3-101, MCA), and the Board should maintain such reasonable supervision to ensure that licensees, “maintain standards of conduct and exercise [their] privileges ... in the greatest public interest.” (Section 37-3-202, MCA). The greatest public interest in this case would be served by limiting the restriction of Dr. Kauffman’s license to obstetrics and gynecological cases, and leave him free to practice in all other fields in which he is qualified. The people in northwest Montana would be better served by such a course. The effect of the Board’s decision is to deny to a qualified practitioner the right to practice within all fields of his expertise in Montana. Under White, this is an abuse of discretion.

An example of going outside the record to justify a result is the resort by the agency and now this Court to a comparison of the agony felt by the bereaved families of the infants to the “inconvenience” of Kauffman’s loss of license. Our natural sympathies are played upon and the punishing effect of the order is masked as just retribution.


source: Caselaw Access Project

author: MR. JUSTICE SHEEHY MR. JUSTICE GULBRANDSON,

license: Public Domain

text:
    BUTTE COMMUNITY UNION, et al., Plaintiffs and Respondents, v. DAVE LEWIS, Director of the Montana Department of Social and Rehabilitation Services, Defendant and Appellant.
    No. 87-144.
    Submitted Sept. 3, 1987.
    Decided Nov. 23, 1987.
    745 P.2d 1128.

      Russell Cater argued, Dal Smilie, Michael S. Becker, Legal Affairs, Dept, of SRS, Helena, for defendant and appellant.
    James H. Goetz argued, Bozeman, Russell A. LaVigne & Michael Sinclair, Mont. Legal Services, Helena, Robert L. Deschamps, III, Co. Atty., Peggy Verburg, Missoula, Jim Reynolds, Helena, plaintiffs and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

The members of the 1972 State Constitutional Convention embraced a bold concept. They provided in Article XII, Section 3(3) that:

“(3) The legislature shall provide such economic assistance and social and rehabilitative services as may be necessary for those inhabitants who, by reason of age, infirmities, or misfortune may have need for the aid of society.”

From the viewpoint of hindsight, 15 years later, some may perceive Article XII, Section 3(3) as visionary and idealistic. The electors of this State, however, adopted the concept by ratifying the State Constitution on June 6, 1972, through Referendum No. 68.

Clearly and grammatically (by the use of the disjunctive “or”) the State Constitution imposes upon the legislature a duty to provide necessary economic assistance to inhabitants who need societal aid by reason of three disparate conditions over which they have no control: age, infirmity, or misfortune.

In 1985, the legislature met, and purporting to comply with its duty under Article XII, Section 3(3), promulgated Section 53-3-205(3), MCA, which excluded able-bodied persons under age 35 without dependent minor children from general relief assistance for basic necessities. The same legislature also adopted Section 53-3-209(2), MCA, which declared able-bodied persons ages 35-49 without dependent minor children ineligible for general relief assistance for basic necessities for more than three months of general relief assistance beginning 60 days after they applied for general relief assistance.

These enactments of the 1985 legislature were overturned in the District Court and eventually came to this Court in Butte Community Union v. Lewis (Mont. 1986), [219 Mont. 426,] 712 P.2d 1309, 43 St.Rep. 65. There, this Court, applying a middle-tier standard of review to equal protection guaranties under our state law, held that denying general assistance relief to members of the class of able-bodied persons solely on the basis of attained age did not pass constitutional muster.

The legislature met in a second special session in June, 1986. There the legislature adopted (Ch. 10, Laws of Montana, 2d Spec. Sess. (June, 1986)), amendments to Section 53-3-205(3), MCA, to the effect that able-bodied persons without dependent minor children were not eligible for non-medical general relief assistance “except as provided in Section 53-3-209”; and amended Section 53-3-209(2), MCA, to provide that able-bodied persons without dependent minor children were eligible for no more than two months of nonmedical general relief assistance within a 12 month period. The legislature eliminated the 60 day waiting period.

These new provisions of the public assistance laws, denying general assistance relief to all able-bodied persons without dependent minor children for more than two months, were again challenged by Butte Community Union in the District Court, First Judicial District, Lewis and Clark County. In that court, the district judge, applying the middle-tier standard of review enunciated in the first Butte Community Union case, determined again that the new provisions failed to meet equal protection guaranties under our State Constitution and was thus unconstitutional. The district judge enjoined the enforcement of those provisions. The State through the Department of Social Rehabilitation Services (SRS) has appealed to this Court. On consideration, we sustain the District Court and affirm the decision.

There are other statutes to be considered in determining the validity of the general assistance programs for able-bodied persons. Able-bodied persons are those who are not infirm. Section 53-3-109(1), MCA. Able-bodied persons are not excluded from assistance for needed medical services. Section 53-3-205(3), MCA. Able-bodied persons receiving general public assistance, in counties with state-assumed welfare services must enroll in a structured job search and training program provided by the Department of Labor and Industry. Section 53-3-304(3), MCA; (Ch. 10, Laws of Montana, 1st Spec. Sess. (March, 1986)).

It is the position of SRS that able-bodied persons without dependent minor children are simply not misfortunate, because the legislature has defined them as not eligible to receive full cash general relief assistance. This contention springs from legislative findings adopted with the 1986 amendments to Section 53-3-108, MCA, as follows:

“(2) The legislature finds that assistance under the general relief program should not be available to those persons who have either adequate income or resources of their own or who are able-bodied
“(3) The legislature, in recognition of the need to expand the employment opportunities available to able-bodied persons who do not have dependent minor children, will provide two months of general relief so that such able-bodied persons may be eligible for the job readiness training authorized in 53-3-304(3), MCA.” (Emphasis added.)

Of course, persons who have adequate income or resources of their own are not entitled to general assistance. They have no need for the aid of society. They are not misfortunate. The legislature, by its finding, has completely eliminated from economic assistance misfortunate able-bodied persons who may have need for the aid of society. The finding, therefore, is in flat opposition to Article XII, Section 3(3) of the Constitution, that all misfortunate persons who have need for the aid of society shall receive economic assistance through legislative action. The legislature cannot escape its constitutional duty by defining out the persons to whom the constitutional protection attaches. To allow such a finding to stand is tantamount to allowing the legislature to amend the Constitution by its own action, a power denied the legislature under the state Constitution. See Article XIV, 1972 Mont. Const.

Article XII, Section 3(3) is not self-executing, and it needs the affirmative action of the legislature to be given effect. It is a duty not lightly to be omitted. As we pointed out in Jones v. Cooney (1928), 81 Mont. 340, 343-344, 263 P. 429, 430:

“The care of the state for its dependent classes is considered by all enlightened people as a measure of its civilization [citing authority] and provision for the proper care and treatment at public expense of the indigent sick and of those who for other reasons are unable to take care of themselves is said to be among the unquestioned objects of public duty [citing authority].
“The people of Montana gave recognition to this high moral obligation when they wrote into the constitution Section 5 of Article X, which provides: ‘The several counties of the state shall provide as may be prescribed by law for those inhabitants, who, by reason of age, infirmity or misfortune may have claims upon the sympathy and aid of society.’ As this constitutional declaration is not self-executing the measure of relief which may be furnished necessarily depends upon statutes enacted to carry out the benevolent purpose expressed.”

Under the 1986 amendments to the public assistance statutes, eligible able-bodied persons with dependent minor children may receive nonmedical general assistance relief for basic necessities without limit (subject to job training provisions). At the same time, eligible able-bodied persons without dependent minor children may receive the same assistance for but two months in any year (subject to the same job training provisions). Within the class of eligible able-bodied persons, therefore, not all are treated equally. The distinction is based solely on the presence or nonpresence of dependent minor children, without regard to whether able-bodied persons without dependent minor children may, through misfortune, “have need for the aid of society” for a greater period than two months in any year. On their face, the 1986 amendments do not meet the duty imposed on the legislature to provide for the misfortunate under Article XII, Section 3(3) of the Montana Constitution.

When this case was before the District Court, it determined that the case was controlled by the standard of review established in Butte Community Union v. Lewis (Mont. 1986), [219 Mont. 426,] 712 P.2d 1309, 43 St.Rep. 65. The District Court further determined that in order for it to make a finding that the 1986 amendments were constitutional, the state must demonstrate two factors: (1) that the classification of welfare recipients on the basis of being able-bodied without dependent minor children was reasonable; and, (2) that the state’s interest in classifying welfare recipients on the basis of being able-bodied without dependent minor children was more important than the people’s interest in obtaining welfare benefits. The District Court further determined that both parts of the test must be met before the amendments could be declared constitutional. The District Court correctly interpreted Butte Community Union (BCU).

In applying the BCU test, the District Court turned first to whether the denial of benefits to able-bodied persons without dependent minor children was reasonable. It concluded that classifying persons based on being able-bodied without dependent minor children was a broad generalization which under the BCU test can be interpreted as unreasonable and thus the state had failed to meet the first part of the BCU test. It saw no reason, therefore, to look to the second part of the BCU test and ordered the issuance of a permanent injunction prohibiting the SRS from implementing the provisions of the 1986 amendments to the public assistance statutes.

In its findings supporting its conclusions, the District Court found that no other programs were offered by the SRS or the state which would provide the affected individuals with assistance for shelter, transportation and personal needs; that 785 recipients of general relief assistance statewide would have their benefits terminated by January 1, 1987; that most of these would be in counties with state-assumed general relief assistance programs; that denying general assistance to the affected individuals would save the state $1.2 million in fiscal year 1987; that the position of the state was not that such able-bodied persons without dependent minor children were not in need of assistance, but that of all people served, they were of the lowest priority for general assistance.

The court determined as a fact that many able-bodied persons without dependent minor children who have previously been eligible for general assistance have significant identifiable barriers to employment. These include: (a) being out of the labor market for one year or more; (b) lack of skills and/or experience; (c) lack of transportation; (d) no address or telephone; (e) poor job hunting skills; (f) a high level of illiteracy; and, (g) alcoholism or chemical dependency. It determined that the job readiness program authorized in Section 53-3-304(3), MCA, would not be effective for many of the recipients in that they would not be “job ready” within the two month period. The District Court further determined that because of the state of Montana’s economy not everyone affected by the termination of benefits would be able to find employment and that even though some jobs might be available, not all recipients would have the skills and qualifications required by those jobs. It further determined that not everyone who was affected by the termination of benefits would receive assistance from family, churches or other charitable organizations to meet minimal living needs.

SRS makes no attack on the sufficiency of the evidence to sustain the findings of the District Court. Rather, it argues that the classification between eligible able-bodied recipients is reasonable because of (1) factual distinctions between able-bodied and the infirm; (2) job search training and work program provided to able-bodied persons; (3) sufficient job openings that exist; (4) extensive services and benefits in conjunction with support from friends, relatives and charities; and, (5) factual distinctions between able-bodied persons with or without dependent minor children.

Each of the state’s contentions is refuted by the findings of fact made by the District Court. In case after case, we have iterated the binding force of Rule 52(a), M.R.Civ.P., that findings of fact in non-jury cases made by District Courts may not be set aside by us unless clearly erroneous. In this case, the state does not maintain that the findings of the District Court are clearly erroneous or that they are not supported by the evidence. It merely contends that the District Court could have made different findings and reached a different conclusion.

The legislature acted in 1986 under a number of general assumptions that prove to he invalid. First, it found that “the general relief program should not be available to those persons . . . who are able-bodied.” (Emphasis added.) Section 53-3-108(2), MCA. Inconsistently, it allowed general relief assistance for basic necessities to able-bodied persons with dependent minor children. Section 53-3-205(2), MCA. The District Court found that 785 able-bodied persons without dependent minor children were eligible as of the date of hearing for general assistance relief for more than two months, but were excluded by reason of Section 53-3-209(2), MCA.

The legislature assumed that allowing able-bodied persons without dependent minor children to be eligible for the job readiness training authorized in Section 53-3-304(3), MCA, would make them employable. The District Court found that while some of the participants would be “job ready” within the two-month period, many would not.

The legislature assumed that sufficient job openings existed to absorb the number of able-bodied persons without dependent minor children. The District Court found that because of our economy, employment opportunity did not exist for all and that though some jobs might be available, not all recipients would have the skills or qualifications required for the job openings.

The legislature assumed that able-bodied persons without dependent minor children could rely on support from friends, relatives and charities and on other state programs including food stamps, medical services, and energy assistance. The District Court found that such additional programs did not provide affected individuals with assistance for shelter, transportation or personal needs and that not all could depend on family, churches or other charitable organizations to meet minimal living needs.

The District Court therefore concluded as a matter of law that classifying able-bodied persons without dependent minor children as having no need for general relief assistance was a broad generalization which was arbitrary and unreasonable. The findings of the District Court demonstrate the unreasonableness of the broad general classification.

The State additionally argues that the action of the legislature in not excluding infirm persons from general relief assistance demonstrates the reasonableness of excluding able-bodied persons. Aside from the obvious fact that an infirm person is not “able-bodied,” Section 53-3-109(1), MCA, the legislature has a separate identifiable duty under Article XII, Section 3(3) to provide for the infirm needy. It is sophistry for counsel to claim reasonableness in that the legislature performed its duty with respect to one class of needy persons and thereby offset its duty to provide for another class of needy persons.

A final argument made by SRS is that it is reasonable to distinguish between able-bodied persons with dependent minor children, and those without such minor children. Here the argument runs that children are at risk and have little resources for their support and protection; that the protection of neglected and abused children is a primary mission of the state through another department; that the presence of children at home can be a barrier to employment in view of the costs of daycare, transportation and the possible unavailability of daycare; and that the legislature and the courts, through enactments or decisions, have recognized the risks to children and the reasonableness of distinguishing between them and adults in such programs as AFDC, provisions on child abuse and neglect and the likelihood of economic stress when there are more mouths to feed. Of course, it is true that able-bodied persons with dependent minor children face different kinds of problems from able-bodied persons without minor children. The difference in problems, however, does not obviate what the District Court in this case found: there are 785 eligible, able-bodied persons without minor children in need of the aid of society for the basic necessities of life. Again, the state is seeking to establish reasonableness because it has performed part of its duty under Article XII, Section 3(3). It has provided for eligible able-bodied persons with dependent minor children, but not for those without dependent minor children.

We, therefore, affirm the District Court. In doing so, we acknowledge the difficulty confronting the legislature in the two special sessions of 1986 to spread the available state funds over the needs of the state. The task was not easy, and sacrifices were required in nearly every state-funded activity. We know too, that hard times continue for the state. The legislature, in determining where sacrifices are necessary, should regard “welfare benefits grounded in the constitution itself are deserving of great protection.” Butte Community Union v. Lewis, 712 P.2d at 1314. The State may legitimately limit its expenditures for public assistance, public education or any other program even-handedly applied. It may not limit its expenditures by the expedient of eliminating classes of eligible individuals from public assistance without regard to their constitutionally grounded right to society’s aid when needed, through misfortune, for the basic necessities of life. We do not hereby declare that inhabitants have a constitutional right to public assistance. We do declare that the legislature, in performing its duty under Article XII, Section 3(3), must not act arbitrarily between classes of entitled persons.

MR. JUSTICES HARRISON, WEBER and HUNT concur.

MR. JUSTICE GULBRANDSON,

specially concurring:

As in Butte Community Union v. Lewis (Mont. 1986), [219 Mont. 426,] 712 P.2d 1309, 43 St.Rep. 65, I do not concur in the adoption of the described middle-tier standard of review. The first prong of that test requires a reasonable, non-arbitrary, classification of welfare recipients by the legislature. I agree with the adoption of that requirement as I perceive it to be an appropriate interpretation of the rational basis test. It is obvious that some courts in the past deferred to legislative classifications to the extent that the rational basis test was sometimes described as “toothless,” and that may be the reason for the adoption, by the majority, of the middle-tier test. I do not agree with the adoption of the second prong of the test as stated because of the balancing decision to be required of this Court in future challenges to welfare classifications set by the Montana legislature. In my view, this Court, without particular expertise or competence, will, of necessity, be operating in the legislative arena in violation of the separation of powers doctrine, Article III Section 1, Constitution of Montana.

Because this case was decided under only the first prong of the described middle-tier test, and the trial court determined that the classification was not reasonable, I concur in the result.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICE McDON-OUGH join in the foregoing special concurrence.


author: MR. JUSTICE GULBRANDSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROBERT EUGENE MORSE, Defendant and Appellant.
    No. 86-369.
    Submitted on Briefs Sept. 3, 1987.
    Decided Nov. 24, 1987.
    746 P.2d 108.

      John S. Keith, Great Falls, for defendant and appellant.
    Mike Greely, Atty. Gen. Barbara Claassen, Asst. Atty. Gen., Helena, Patrick L. Paul, Cascade Co. Atty., Great Falls, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Defendant Robert Morse appeals his conviction of solicitation following a jury trial in the Eighth Judicial District, Cascade County. Morse, along with codefendant Ray Brown, was charged by information on November 19, 1985 with two counts: Count I, conspiracy (aggravated kidnapping); and Count II, conspiracy (deliberate homicide). On January 24, 1986, the information was amended to include solicitation to encourage or facilitate aggravated kidnapping and deliberate homicide, a felony, against Morse only as Count III. Joint-trial was held from February 24, 1986 to March 10, 1986. The jury returned a verdict of not guilty on Count I and Count II but Morse was found guilty of solicitation. On May 9, 1986, he was sentenced to fifty years in the Montana State Prison. Brown was found not guilty on both counts.

We affirm.

The two following issues are presented for our review:

(1) Was the State’s informant an accomplice and therefore legally accountable for Morse’s solicitation requiring corroborating evidence prior to the informant’s testimony?

(2) Did the District Court err in allowing in evidence a surveillance tape recording and testimony of an agent who conducted the surveillance?

Defendant in this case, Robert Morse (Morse), was 88 years old at the time of trial of this case. His sight had previously dissipated and therefore he could not operate an automobile. Morse, who is also known as “Goldie,” met Thomas Marchington (Marchington), the informant for the State in this case, at a bar in Billings, Montana, while the two were playing poker. Marchington was asked by Morse if he wanted to earn some money for doing something illegal. It was not made clear to Marchington originally what the act would be, but Marchington was interested.

In May and April of 1985, Marchington told agent Steve Sparhawk (Sparhawk) of the Montana Department of Justice Law Enforcement Services Division that Morse approached Marchington and was planning something illegal. Sparhawk and Marchington had previously met regarding matters unrelated to this case. When Marchington first discussed Morse’s offer with Sparhawk, he testified he did not intend to do what Morse had suggested. Marchington testified that Morse would pay Marchington for transporting him to Great Falls, that they would pick up a number of people, and that Marchington would transport them back to Billings.

Approximately a month after Marchington contacted Sparhawk, Morse again asked Marchington if he was interested in participating in the illegal activity for a large amount of money. Marchington still did not know what the specific activity was, but at trial testified: “I told him I was always interested in trying to get some money.” Marchington did not immediately report Morse’s request to Sparhawk.

By late summer or early autumn of 1985, Marchington began driving Morse to Great Falls in Morse’s car. Marchington still did not know what illegal activity was involved. Morse told him not to bring any weapon.

On the first trip to Great Falls, Marchington said he left Morse at the Greyhound Bus depot at approximately 1:00 p.m. Morse gave Marchington $20 and told him not to get drunk but to return with the car around 4:00 p.m. Marchington said he left the car parked in a parking lot across from the bus depot, and watched Morse get picked up in a blue El Camino driven by a black man. Morse returned later that afternoon and Marchington and Morse drove back to Billings. There were a number of trips between Billings and Great Falls after this first trip and Morse often mentioned people that he talked to in Great Falls. One of these people was Ray Brown, whom Marchington was introduced to later. Brown was also referred to by Morse as “Brown” or “Brownie.” Brown is a black man and owns a blue El Camino.

Marchington again contacted Sparhawk on October 15, 1985. Marchington had been given more information as to what the intended crime was to be by this meeting. By October 15, Marchington had driven Morse to Great Falls approximately seven or eight times. Marchington told Sparhawk of Morse’s plans in a taped conversation. The alleged scheme was to pick up Dr. John McGregor, a Great Falls physician, and possibly McGregor’s wife, and hold them for ransom. The kidnapping allegedly would entail threatening the victims into writing ransom notes and then end in the murder of the victims.

On October 22, 1985, Marchington notified Sparhawk that he was again driving Morse to Great Falls. Before he left Billings, Marchington met with another state agent, Ward McKay (McKay) who attached an electronic transmitter on Marchington so that any conversation could be heard and taped.

Morse and Marchington were followed to Great Falls by agents from Billings. These agents and Great Falls police officers watched them drive by Dr. McGregor’s house. The McGregors had been transported from Great Falls for protection purposes. Marchington testified that he and Morse drove past the McGregor’s residence in the early evening of October 22 and saw a man and woman inside but no vehicle. Morse became suspicious because of the lack of a car. A similar type vehicle as the McGregors’ was obtained by the Great Falls officers and placed at the McGregor residence at 8:15 p.m. At approximately 9:00 p.m., they again drove by the house and noticed a new Lincoln automobile with a thirty-day sticker but no license plates. Morse at this time became fairly nervous according to Marchington. In fact, the individuals inside the McGregor residence were actually undercover police officers. On October 23, Morse and Marchington made one more pass by the McGregors’ and again noticed people inside but no vehicle. Morse was arrested later that day when he and Marchington stopped at a trailer rental business.

At trial, Marchington stated that he and Morse, on a number of occasions, watched Dr. McGregor at his house and work. The two also drove to an area on the Missouri River known as “Big Bend” where the bodies were allegedly to be disposed. Marchington said Morse had to unlock two padlocks to get to Big Bend and Morse had keys to the padlocks. This property adjacent to the river is owned by Harry Mitchell who testified that he had previously given two keys, one marked “BB,” to Ray Brown approximately four or five years before trial. Morse was found in possession of these or similar keys when he was arrested.

Marchington testified that Morse had a number of items that he always carried in two bags in the trunk of his car that were to be used in the kidnapping, murder and dismemberment of the victims. These items included pencils, pens, paper, a typewriter, a set of handcuffs and a .38 revolver which were to be used to coerce the victims into writing ransom notes. Marchington testified that he saw a rubber raft, hammer, chisel, flashlight, hacksaw, and two knives, a shovel and a small board which were to be used to dismember and dispose of the bodies. Also, there were newspapers to be used to burn the victim’s hair off and hinder identification.

The initial information was filed November 19, 1985, and Morse was arraigned and entered a plea of not guilty on December 2, 1985. He entered a plea of not guilty to the amended information on January 24, 1986.

At trial, much of the State’s case was based on the testimony of Marchington. Seven Great Falls police officers, a Cascade County sheriff’s deputy, and three investigators (along with Sparhawk) from the Department of Justice also testified. One of the investigators was McKay. McKay placed the transmitter on Marchington and followed Marchington and Morse to Great Falls. He testified as to portions of eight tape-recordings made during the surveillance of October 22 and 23, 1985. Portions of the tapes were difficult to hear and understand so McKay was allowed by the District Court to describe what he saw and heard.

Morse contends on this appeal that the District Court’s allowance of Marchington’s testimony was error because he was an accomplice to the solicitation charge and no corroborating evidence was presented to support his testimony. Morse argues that as a coconspirator and accomplice Marchington’s testimony had to be limited as provided in Section 46-16-213, MCA, which provides:

“A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, as defined in 45-2-301, unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”

Section 45-2-302(3), MCA, defines the elements of being an accomplice that could apply in this case. One is legally accountable for another’s conduct if “[e]ither before or during the commission of an offense with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense.” Morse contends that in Marchington’s own testimony he admitted that he and Morse discussed the proposed criminal activity, and Marchington did not advise the authorities.

“Q. When Morse asked you if you were interested in this — still interested in this activity about a month after you talked to Spar-hawk, did you tell Sparhawk about that conversation?

“A. No.

“Q. Why not?

“A. I was interested in getting some money in my pocket.”

This statement, Morse argues, shows that Marchington should be accountable for Morse’s actions as an accomplice because he was aiding Morse. When this statement was made, Marchington was still unaware of what criminal activity was involved. The referenced testimony occurred approximately June of the summer of 1985. It was not until August or September of 1985 that Marchington began driving Morse to Great Falls for surveillance of Dr. McGregor and it was not until later in the fall that he realized what crime was to be committed.

“Q. Prior to your first trip to Great Falls, did you have any more discussion about what this criminal activity would be?

“A. No, not until after the first trip.

“Q. Okay. Do you recall about when the first trip to Great Falls was?

“A. Late summer or early fall. August, September, somewhere in there.

“Q. During this period of time prior to October 15th when you were to see Sparhawk again, were you ever given any more details of what the criminal activity was supposed to entail?

“A. Yes.

“Q. Was that on one occasion or on more than one occasion?

“A. A little bit here and there.

“Q. Bits and pieces?

“A. Bits and pieces.

“Q. Do you recall the next thing you heard about the activity?

“A. That he was going to pick up Dr. John and/or his wife.

“Q. Did he give you anything more than ‘Dr. John’?

“A. That and the address where they lived. He had me go past the doctor’s house.

“Q. Okay. When did you first discuss with Morse what specifically you were to do with Dr. John?

“A. Morse went — started going into detail on one trip back to Billings here.

“Q. Do you recall about when that trip was or which trip it was?

“A. I am not positive when it was . . .”

Although the testimony shows that the exact time period is unclear as to when Marchington finally determined that the crime of kidnapping was going to occur, it is clear the knowledge was obtained much later than June when he made the damaging statement on which Morse relies. Marchington contacted Sparhawk and informed him of Morse’s plan on October 15, 1985.

Section 45-2-302, MCA, has an exception to subsection (3) that aids in determination of this case which states:

“[H]owever, a person is not so accountable if:
“(b) before the commission of the offense, he terminates his effort to promote or facilitate such commission and does one of the following:
“(ii) gives timely warning to the proper law enforcement authorities . . .” (Emphasis added.)

Marchington did indeed give notice to Officer Sparhawk and as a result, the actual commission of the crime did not occur. A plain reading of this statute shows Marchington is not accountable for any crime. He was not an accomplice to the offense of solicitation.

The law regarding accountability of the part of an accomplice is well settled. Section 45-2-302, MCA, has been interpreted by this Court and from the testimony presented at the District Court, we can find no accountability on the part of Marchington for the crime of solicitation:

“[Accountability] has been the subject of much attention in case law. We have emphasized that mere presence at the scene of a crime is not enough to charge one as an accomplice. State v. Fish (Mont. 1980), [190 Mont. 461,] 621 P.2d 1072, 1078, 37 St.Rep. 2065, 2071; State ex rel. Murphy v. McKinnon (1976), 171 Mont. 120, 125, 556 P.2d 906, 909. Moreover, the mere knowledge that a crime is about to be committed does not make one an accomplice. State v. Harvey (1979), 184 Mont. 423, 431, 603 P.2d 661, 666; State v. Mercer (1943), 114 Mont. 142, 152, 133 P.2d 358, 361. A true accomplice is:
“ ‘one who knowingly, voluntarily and with common intent with the principal offender unites in the commission of a crime . . . One may become an accomplice by being present and joining in the criminal act, by aiding and abetting another in its commission, or not being present, by advising and encouraging its commission; but knowledge and voluntary actions are essential in order to impute guilt.’ ” (Citations omitted.)

State v. Nordahl (Mont. 1984), [208 Mont. 513,] 679 P.2d 241, 243, 41 St.Rep. 502, 504.

Marchington did not have the common intent to commit the crime of solicitation. His testimony shows that it was only after he received “bits and pieces” of information that he fully understood what Morse planned to do. Once the entire plot was understood by Marchington, he informed Sparhawk and therefore the exception of Section 45-2-302(3), MCA, is applicable. At any rate, Marchington could not be accountable for the crime of solicitation of which Morse was convicted.

Counsel for Morse did make a motion in limine to have the court rule that Marchington was an accomplice/coconspirator and to therefore limit his testimony until corroborating evidence was first presented. However, the requirement of Section 46-16-213, MCA, requiring corroborating evidence is applicable only if Marchington was in fact an accomplice or accountable for Morse’s solicitation. The District Court denied Morse’s motion and stated it would not require the State to present its case in a particular fashion.

The State points to the fact that Morse was not convicted of conspiracy (kidnapping), or conspiracy (deliberate homicide), as he was originally charged. Morse was convicted of solicitation pursuant to Section 45-4-101, MCA, which provides:

“(1) A person commits the offense of solicitation when, with the purpose that an offense be committed, he commands, encourages, or facilitates the commission of that offense.”

Therefore, any claim relating to conspiracy is irrelevant in this case. We are bound to determine the merits of Morse’s claim on the solicitation conviction only. Solicitation is distinct from the crime of conspiracy. Solicitation requires that the solicitor “attempts] to enlist coconspirators” to commit a crime. Compiler’s Comments, Vol 5, M.C.A. Annot. at 121, Section 45-4-101, M.C.A.. There was never any allegation nor evidence presented that Marchington attempted to persuade any other person to facilitate any criminal activity. The jury’s finding was based on the solicitation of Marchington by Morse to facilitate the crimes of kidnapping and deliberate homicide.

Nonetheless, the testimony of Marchington was corroborated numerous times. “[T]he corroboration is sufficient if, ‘unaided by the testimony of an accomplice, it tends to connect the defendant with the commission of the offense.’ ” State v. Gonyea (Mont. 1987), [225 Mont. 56,] 730 P.2d 424, 427 44 St.Rep. 39, 42. The officers investigating this case testified that they followed Marchington and Morse from Billings to Great Falls. The route chosen was exactly as told to them by Marchington. Marchington and Morse were observed driving by Dr. McGregor’s house on a number of occasions on October 22, 1985. The instruments, tools and other objects the officers were told by Marchington were in Morse’s car were indeed found by investigating officers and independently introduced into evidence. Evidence was also presented that showed a new muffler was installed on Morse’s automobile in Great Falls during this period of time, and the mechanic described Morse and Marchington together in that vehicle. Newspapers were found in the back of Morse’s automobile with dates similar to the period of time in which Marchington and Morse were to have made other trips to Great Falls prior to October 15, 1985. Keys which opened the gates onto the Mitchell property, one of which had printed on it “BB” — for Big Bend, the area where the McGregors were to be executed — were found on Morse and identified by Harry Mitchell.

All of this evidence tends to connect Morse with the commission of the offense of solicitation without the courtroom testimony by Marchington. This corroborating evidence was all introduced and the jury needed only the testimony of Marchington, who was not an accomplice, to find the elements of the crime.

We recognize that this Court has previously stated that when there are disputed facts as to whether a person is an accomplice that the issue is one for the jury under proper instruction. Gonyea, supra 730 P.2d at 425, 44 St.Rep. at 40. But in this instance, there was no disputed fact that Marchington properly alerted the authorities and aided in the prevention of a possible heinous crime. The District Court therefore properly ruled as a matter of law that Marchington was not an accomplice.

Morse also contends that the District Court erred in admitting surveillance tapes into evidence of the trip from Billings on October 22 and 23, 1985. The District Court acknowledged that much of the recorded conversation was inaudible. However, the District Court allowed officer McKay to act as an “oral transcriber,” interpreting what was said on the tapes and what occurred while the statements were made.

The policy behind the use of transmitters on informants was enunciated in State v. Hanley (1980), 186 Mont. 410, 608 P.2d 104, a case involving the recording of a drug transaction by an informant:

“The general rule is that it is impermissible for police officers to intercept, transmit or record private conversations; however, if one of the parties to the conversation consents, even an informer, such actions are legal. People v. Patrick (1973), 46 Mich.App. 678, 208 N.W.2d 604; United States v. Mendoza (U.S.C.A. 5th, 1978), 574 F.2d 1373, rehearing denied 579 F.2d 644. This is true as long as the will of the consenting party has not been subjected to overbearing pressure from the authorities.”

Hanley, 186 Mont at 419, 608 P.2d at 109.

We have previously held that the use of tape recordings is acceptable and is a question left to the discretion of the trial court. State v. Bassett (1980), 189 Mont. 28, 614 P.2d 1054; Hanley, supra; and State v. Brubaker (1979), 184 Mont. 294, 602 P.2d 974. In Bassett, we stated:

“The recordings of conversations monitored with the consent of one of the conversants and with judicial authority are not subject to suppression. See State v. Hanley, supra. Further, as we noted in State v. Brubaker (1979), Mont. [184 Mont. 294], 602 P.2d 974, 36 St.Rep. 1915, tape recorded statements may be considered direct evidence or corroborative evidence and are subject to the same test for admissibility as the direct evidence of eyewitnesses or the testimony of witnesses to oral statements. The question of admissibility of this kind of evidence is a matter for the sound discretion of the trial judge.” (Emphasis added.)

Bassett, supra, 189 Mont. at 32-33, 602 P.2d at 1056.

Under the facts of this case, Marchington was a willing participant in the tape recording. There was no allegation of overbearing pressure ever made. Morse did not object to the tapes on any ground other than that they were of poor quality and inaudible and he argued it was unfair prejudice to allow McKay to interpret them. Morse cites United States v. Frazier (2nd. Cir. 1973), 479 F.2d 983, as controlling because of the possible inference the jury could make from unintelligible recordings and due to the substantial impact that an inaudible recording may have on the jury. The Frazier case involved a tape which was found by the trial judge to be “75% unintelligible.” The tape was made by the appellant who was later convicted without the use of the tape. The court initially refused to allow appellant’s counsel to introduce the tape because of its poor quality. The court later ruled the tape would be allowed if accompanied by an explanation by the judge that he considered the majority of the tape inaudible and that counsel had failed to provide the court with a transcript of the recorded conversation. Frazier, supra, 479 F.2d at 985. The attorney for the appellant decided not to use the tape under these conditions but it is noted that the tape was still made available.

In the case at bar, the District Court allowed the use of the tape and testimony of McKay but included a specific instruction to the jury which stated:

“Tape recordings of conversations identified by witnesses have been received in evidence. An interpretation was furnished by Agent McKay for your guidance as you listened to the tapes, clarifying portions of the tapes which were difficult to hear and identifying speakers. The tapes, however, are evidence in the case and interpretation of those tapes by Agent McKay is not evidence. If you perceive any variation you will be guided solely by the tapes and not by Agent McKay’s interpretation.
“If you cannot determine, from the tape that particular words were spoken you must disregard the interpretation insofar as those words are concerned.”

We find this instruction proper.

Frazier further supports Brubaker, Hanley and Bassett in that the Frazier court noted that “[a] trial judge has wide discretion in determining whether to allow a recording to be played before the jury when there is a serious question of its audibility.” Frazier, supra, 479 F.2d at 985.

Additional authority is found in United States v. Jones (10th Cir. 1976), 540 F.2d 456, cert. denied, 429 U.S. 1011, 97 S.Ct. 1125, 51 L.Ed.2d 551, where poor quality tapes were played to the jury while an informer testified as to what was said. The appellate court held the trial court had not abused its discretion:

“Where a tape recording is objected to as admissibility is within the sound discretion of the trial judge. United States v. Hodges, 480 F.2d 229, 233-34 (10th Cir. [1973]). Unless the unintelligible portions are so substantial as to render the recording as a whole untrustworthy, it may be admitted; this is especially so where a witness who heard the statements also testifies and the recording gives independent support to his testimony.”

Jones, supra, 540 F.2d at 470. The District Court properly allowed McKay to interpret the tape in this case.

Finally, Morse contends he was prejudiced by the District Court allowing the jury to take the tape recordings into deliberations. The District Court denied a motion for mistrial on the grounds that the jury had already heard the testimony and tapes. This again is subject to the discretion of the court. Section 46-16-504, M.C.A., states:

“Upon retiring for deliberation, the jury may take with them all papers which have been received as evidence in the cause, except depositions or copies of such papers as ought not, in the opinion of the court, to be taken from the person having them in his possession. The jury may also take with them any exhibits which the court may deem proper and notes of the proceedings taken by themselves.” (Emphasis added.)

The tapes had been admitted into evidence by the District Court and the jury was properly instructed as to the weight to give the tapes. Those portions the jury could not understand were to be disregarded entirely. Just as with papers which have been properly admitted into evidence that are allowed in the jury room during deliberations, the tapes were evidence which at the discretion of the court could be allowed. We do not find abuse of discretion by the court.

The conviction is affirmed.

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


author: MR. JUSTICE HARRISON

text:
    GERALD CARLSON and Precision Automotive, Inc., a Montana corporation, Plaintiff and Appellant, v. DOUGLAS K. MORTON, Defendant and Respondent.
    No. 87-128.
    Submitted Oct. 6, 1987.
    Decided Nov. 24, 1987.
    745 P.2d 1133.
    Richard DeJana argued, Kalispell, for plaintiff and appellant.
    Warden, Christiansen, Johnson & Berg, Stephen Berg argued, Kalispell, for defendant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Plaintiff appeals an order of the District Court of the Eleventh Judicial District granting a directed verdict to defendant Morton. The plaintiff had sued Morton alleging that he had been negligent in handling certain legal matters for the plaintiff and had misrepresented his interests. The attorney for the plaintiff notified the court and the defendant when the matter came on for trial January 19, 1987 that he would not be calling an expert witness, as he had stated at pretrial conference. Plaintiff’s attorney then made his opening statement, at the end of which, the defendant made a motion to dismiss the case for failure to provide expert testimony. Both sides briefed the question to the court. The court then heard arguments and entered an order under Rule 50, M.R.Civ.P., dismissing the case.

We affirm.

Morton was a loan officer and vice president of First Security Bank in Kalispell, Montana when he met Carlson in 1977. Morton, a law school graduate, has been admitted to the practice of law in Montana and did practice for several years before he returned to banking in the mid-1970s. He continued to moonlight practicing law after he joined the bank. He and Carlson built a friendship around their mutual interest in old cars. Morton had the opportunity to do some legal work concerning Carlson’s property settlement and custody agreement when Carlson’s marriage dissolved.

In 1981, Carlson purchased a business on which the Small Business Administration and the Bank of Columbia Falls were foreclosing. To aid in this purchase, Carlson asked Morton to incorporate the newly acquired business in the name of Precision Automotive, Inc. On December 18, 1981, the Secretary of State approved the proposed articles of incorporation and issued a certificate of incorporation. Carlson contends, however, that Morton failed to effectively complete the corporation since he failed to file bylaws or organizational minutes for some fifteen months.

Carlson, though, operated the business as if it had been incorporated. He hired a man by the name of Jack Manning to work at Precision Automotive. Manning brought with him a pinpress that he said Carlson could use in his business. The pinpress served as security for some car repairs that Manning had not been able to pay for. On July 1, 1982, Manning approached Morton at First Security Bank about the possibility of obtaining a $2,000 loan. He was told that since he had not worked for a full year in the Flathead Valley, the bank would require a guaranty. Manning suggested that his employer Carlson could serve as a guarantor. It is not clear what happened at this point. But taking into consideration the allegations most favorable to the appellant, it appears that Carlson told Morton he was reluctant to sign a guaranty. Nevertheless, the loan was made, Carlson was named as guarantor but had not signed the note, Manning got his $2,000 after pledging the pinpress as security, and Manning then left the area. On July 25, 1982, after it was apparent that Manning had no intention of repaying the loan, Morton presented the written guaranty to Carlson for his signature as guarantor. There was some discussion as to whether Carlson should sign the guaranty. Morton encouraged him to sign and so Carlson did sign the guaranty. The guaranty note at some point was backdated to the date of the loan. Carlson had told Morton he feared that others might have an interest in the pinpress. Carlson told Morton he was thinking of removing the serial number to retard any prior lien holder’s right to the pinpress. Carlson alleges that Morton encouraged him to do that. Carlson subsequently removed the serial number.

Morton completed the incorporation of Precision Automotive in March 1983 when he finished the bylaws and organizational minutes. In April 1983, the bank sued Carlson for possession of the pin-press. In an affidavit in support of the bank’s claim, Morton indicated that the serial number had been removed. The District Court upheld the bank’s claim to the pinpress. Carlson’s business at Precision Automotive was seriously affected by the loss of the pinpress and within several months, Precision Automotive was forced out of business. Carlson and Precision Automotive filed a cause of action on May 20, 1983 naming Morton as defendant. The complaint, as amended on October 26,1983, alleged that Morton had violated Disciplinary Rules, 1-102(A)(4), 5-101(A), 5-104, 5-105, 5-107, 6-101 and 7-102 of the Code of Professional Responsibility. Carlson claims that the violation of these Disciplinary Rules was implied malice and as such constituted negligence on the part of the attorney.

The District Court ruled that such charges require expert testimony to delineate the degree of care expected of an attorney handling a client’s affairs. The court ruled that since reasonable minds could properly differ over the plaintiff’s contentions, it would be unfair to lay jurors to force them to figure out the responsibility of an attorney in this matter without the aid of an expert witness. On appeal, Carlson urges that the Code of Professional Responsibility’s Disciplinary Rules state a minimum standard of care, that, when breached, establishes malpractice. He argues that these Disciplinary Rules state the attorney’s duty so succinctly that an expert witness is not required to demonstrate that Morton’s actions were improper and negligent. The question of whether expert testimony is required in a legal malpractice case is one of first impression in Montana.

The Canons of Professional Ethics and their accompanying Disciplinary Rules were adopted by this Court in 1973 (see 160 Mont. xxiii) to assure the utmost integrity in the legal profession and the impartial administration of justice. State ex rel. Coburn v. Bennett (1982), 202 Mont. 20, 32, 655 P.2d 502, 508. In 1985, this Court replaced the Canons with the Rules of Professional Conduct, Montana Supreme Court Order No. 84-303, dated June 6, 1985, but the intent of governing the conduct of attorneys remained. Carlson claims Morton engaged in fraudulent or dishonest misrepresentations in violation of DR 1-102(A)(4); used a confidence of the client to his disadvantage as prohibited by DR 4-101(B); undertook employment when his interests impaired his professional judgment as prohibited in DR 5-101; did not refuse employment even though it might possibly be adverse to his interest as a bank officer as proscribed by DR 5-104 and DR 5-105, and neglected a matter entrusted to him, in violation of DR 6-101. These disciplinary rules have counterparts in the Model Rules of Professional Conduct adopted in 1985, which while differing in language and construction, establish the bounds of ethical conduct by lawyers and are employed for disciplinary purposes.

At issue is whether the applicable ethical rules create a duty in and of themselves so that a jury may determine a breach of a legal duty merely by determining whether the attorney abided by the rules. If the answer to that inquiry is negative, then an expert witness must testify so as to acquaint the jurors with the attorney’s duty of care. It is fundamental that any attorney is required to use reasonable care or skill in handling his client’s affairs. Clinton v. Miller (1951), 124 Mont. 463, 483-84, 226 P.2d 487, 498. The failure to employ such skill may result in the attorney’s liability for damages to his client. Clinton, 226 P.2d at 498. The Canons of Professional Ethics and the later Model Rules of Professional Conduct have been used exclusively in disciplinary proceedings in Montana. J. Faure and R.K. Strong, The Model Rules of Professional Conduct: No Standard for Malpractice, 47 Mont.L.Rev. 363, 369 (1986). When plaintiffs have based claims for negligent practices of law on attorneys’ duties to abide by ethical codes, courts have dismissed such cases. In Bickel v. Mackie (N.D. Iowa 1978), 447 F.Supp. 1376, aff’d (8th Cir. 1983), 590 F.2d 341, the trial court ruled that violation of the Code of Professional Ethics is not necessarily a tortious act and does not create a private cause of action. Bickel, F.Supp. at 1383. Similarly, in Bob Godfrey Pontiac, Inc. v. Roloff (Or. 1981), 630 P.2d 840, a used car dealer sued two attorneys who had failed in a lawsuit against the car dealer. The car dealer alleged that the two attorneys had misled the court with false statements of fact, which he claimed was in direct violation of the Code of Professional Conduct. However, the court ruled that a violation of the Code of Professional Conduct does not give rise to a private cause of action. Roloff, 630 P.2d at 849.

Such reasoning is supported by the Preamble to the Model Rules of Professional Conduct as promulgated by the American Bar Association. That preamble states in part:

“Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek an enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.”

It is true that this Court’s order of June 6, 1985, which adopted the Model Rules of Professional Conduct, adopted expressly only the Rules; it did not mention the Preamble. It also is true that the matters complained of here occurred before we adopted the Model Rules of Professional Conduct. Nevertheless, this portion of the Preamble aptly states the thinking and rationale of those who developed a complicated scheme by which to judge the conduct of attorneys in various and disparate matters, often at times where one ethical rule seems to contradict another.

In any professional negligence action, the plaintiff must prove that the professional owed him a duty, that the professional failed to live up to that duty, thus causing damages to the plaintiff. Negligence cannot be inferred from the simple fact that a loss occurred. Montana Deaconess Hospital v. Gratton (1976), 169 Mont. 185, 191, 545 P.2d 670, 673, Scott v. Robson (1979), 182 Mont. 528, 537-38, 597 P.2d 1150, 1155, citing Thompson v. Llewellyn (1959), 136 Mont. 167, 169, 346 P.2d 561, 562. The field of legal malpractice is relatively unexplored, however, it is undisputed in Montana law that one charging medical malpractice must be able to support his claim that the physician departed from the prevalent standard of medical care. Montana Deaconess Hospital, 545 P.2d at 672-73; Collins v. Itoh (1972), 160 Mont. 461, 469, 503 P.2d 36, 41. Without either expert testimony identifying the doctor’s care as negligent or the defendant-doctor’s own testimony clearly establishing his own conduct as negligent, the defendant-doctor is entitled to summary judgment. Where plaintiffs failed to present expert testimony and the defendant-doctor did not identify his care as negligent, the District Court rightfully granted summary judgment since a jury of laypersons cannot determine for itself what caused an infection. Montana Deaconess Hospital, 545 P.2d at 673. The requirement that an expert witness is needed to establish the standard of care has been extended to dentists and orthodontists, Llera v. Wisner (1976), 171 Mont. 254, 262, 557 P.2d 805, 810; to manufacturers and distributors of pharmaceuticals, Hill v. Squibb and Sons (1979), 181 Mont. 199, 207, 592 P.2d 1383, 1388, to abstractors of title, Doble v. Lincoln County Title Co. (Mont. 1985), [215 Mont. 1,] 692 P.2d 1267, 1270, 42 St.Rep. 128, 131.

Professors Prosser and Keeton may have best summarized the rationale behind this rule:

“Professional persons in general, and those who undertake any work calling for special skill, are required not only to exercise reasonable care in what they do, but also to possess a standard minimum of special knowledge and ability. Most of the decided cases have dealt with surgeons and other doctors, but the same is undoubtedly true of dentists, pharmacists, psychiatrists, veterinarians, lawyers, architects and engineers, accountants, abstractors of title, and many other professions and skilled trades.
“Since juries composed of laymen are normally incompetent to pass judgment on [such] questions ... it has been held in the great majority of malpractice cases that there can be no finding of negligence in the absence of expert testimony to support it . . . Where the matter is regarded as within the common knowledge of laymen, as where the surgeon saws off the wrong leg . . . it is often held that the jury may infer negligence without the aid of any expert.”

Prosser and Keeton on The Law of Torts, Section 32, 5th Edition, (1984).

Carlson’s argument throughout has been that expert testimony was not required because lay jurors could examine the conduct of Morton and determine that it violated the Canons of Professional Ethics. And if the jurors had any doubts, they would be referred to the various Disciplinary Rules, which summarize the lawyer’s obligations. Such contentions are lacking. First, we note that Carlson initially intended to introduce expert testimony from a Missoula attorney. Second, Rule 702 of the Montana Rules of Evidence specifically authorizes the use of expert witnesses “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence ...” Third, the evidence concerning the alleged improprieties involved in this case, while seemingly straightforward, might very easily confuse and befuddle lay jurors unacquainted with general notions of civil procedure, incorporation, and professional legal responsibility. To expect a jury to sit through hours of examination and cross-examination, without the guidance of an attorney’s expert testimony and then arrive at a verdict consistent with the evidence is asking much. This is not because the average juror is not capable of understanding such matters but only because he or she has never had the occasion or desire to study such matters. The attorney’s standard of care depends upon the skill and care ordinarily exercised by attorneys, a criteria that rarely falls within the common knowledge of laymen. While proof of the violation of some disciplinary rules may by itself establish negligence, such is not the case with the rules cited by Carlson. Carlson must prove not that various disciplinary rules were breached in his opinion; rather he must demonstrate that Morton failed in his legal duty. Proof of such a breach requires expert testimony. ABC Trans Nat’l Transp., Inc. v. Aeronautic Forwarders, Inc. (1980), 90 Ill. App.3d 817, 46 Ill. Dec. 186, 197-98, 413 N.E.2d 1299, 1310-11; Lenius v. King (S.D. 1980), 294 N.W.2d 912, 914; Hughes v. Malone (1978), 146 Ga. App. 341, 247 S.E.2d 107, 111; Faure and Strong, The Model Rules of Professional Conduct: No Standard for Malpractice, 47 Mont.L.Rev. at 376 (1986).

It is true that there are instances in which legal malpractice actions have been submitted for fact determination without the use of expert testimony. The theory in such cases is that the attorney’s misconduct is so obvious that no reasonable juror could not comprehend the lawyer’s breach of duty. These include the failure of a criminal defendant’s attorney to appear in court on his client’s behalf, Bowman v. Doherty (1984), 235 Kan. 870, 686 P.2d 112, 120; the lawyer’s failure to file suit within the appropriate statute of limitations; George v. Caton (Ct.App. 1979), 93 N.M. 370, 600 P.2d 822, 829; Collins v. Greenstein (1979), 61 Hawaii 26, 595 P.2d 275, 283; failure of the attorney to retain a first mortgage for seller on property being conveyed despite seller’s clear demand for a first mortgage; Olfe v. Gordon (1980), 93 Wis.2d 173, 286 N.W.2d 573, 576; attorney’s interjection of client’s claims as a permissive counterclaim in state court despite client’s clear demand to file it as a separate claim in federal court is a question of material fact that may or may not require expert testimony, Nemec v. Deering (S.D. 1984), 350 N.W.2d 53, 56; the attorney’s failure to insulate one client from the debts of another client, Hill v. Okay Const. (1977), 312 Minn. 324, 252 N.W.2d 107, 116; and the attorney’s failure to notify a client he was resigning from the case thus resulting in a default judgment, Central Cab. Co. v. Clarke (1970), 259 Md. 542, 270 A.2d 662, 667.

We are aware of the above cases but will apply a rule similar to that for medical malpractice, where expert testimony is required, and so hold that this suit fails for the lack of expert testimony.

The District Court’s order granting a directed verdict to defendant Morton is affirmed.

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


author: MR. JUSTICE GULBRANDSON MR. JUSTICE HARRISON,

text:
    In re the MARRIAGE OF CAROL MITCHELL, Petitioner and Respondent, and FRANCIS O. MITCHELL, Respondent and Appellant.
    No. 87-151.
    Submitted on Briefs Oct. 16, 1987.
    Decided Nov. 24, 1987.
    746 P.2d 598.

      Ellingson & Moe; Jon E. Ellingson, Missoula, for respondent and appellant.
    Paulette C. Ferguson, Missoula, for petitioner and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Francis O. Mitchell appeals the findings of fact, conclusions of law and judgment of the District Court, Fourth Judicial District, Missoula County, Montana determining child support and attorney fees. We reverse and remand for more accurate determination of the parties’ income available for child support.

Francis and Carol Mitchell were married on July 19, 1969. The couple had two children, Timothy, born September 9, 1971, and Kathryn, born October 17, 1972. Francis is employed by the University of Alaska cooperative extension services in McGrath, Alaska. He holds a Masters degree in human behavior. Carol is an attorney in Missoula, Montana. She received a Juris Doctorate degree from the University of Montana in 1977 and has practiced law since that time.

In May 1977, Francis moved to Alaska and lived there through 1980. He was employed by the Iditarod Area School District and initially made $30,000 per year which increased to $36,000 by 1979. Except for a six-month period of time in 1977-1978, the children lived with Carol in Missoula. In 1980, Francis moved from Alaska to Moiese, Montana, where he was employed by the Confederated Salish and Kootenai Tribe at an annual salary of $20,000. Francis continued to travel back and forth between Alaska and Montana to complete contract work which provided some extra income, but maintained his domicile in Alaska.

Carol filed an action for dissolution in September of 1981, and a decree of dissolution was entered on October 8, 1981. The court, in its decree, reserved the division of property, child custody and support. Francis remained employed from October 1, 1982 to April 1983, as an alcohol counselor at the Salish Kootenai College but became unemployed when the program was eliminated.

On June 10, 1983, the parties entered into a “Marital and Property Settlement Agreement and Release of Claims.” After executing the agreement, Francis traveled back to Alaska for interviews with the University of Alaska and was hired on a three-quarter time basis at an annual salary of $42,881.

Following a hearing on October 26, 1984, the court ordered the adoption of the property settlement agreement except for the issue of child support. A hearing on child support was held December 20, 1984 in which the parties’ income was thoroughly yet confusingly scrutinized. There was testimony given and evidence presented which showed amounts both parties paid for support of their children.

Evidence was presented which showed Francis was employed at an annual salary of $42,881 but it was unclear as to what salary Carol claimed. In response to answers to interrogatories, Carol stated her income for 1984 through October was $23,450. At the hearing, she testified that it was $21,850 plus $3,500 which she received from the partnership in November and December. For the years 1981, ‘82 and ‘83, she stated her income varied between $2,000-$4,000 from these figures. On July 11, 1985, after the case had been taken under advisement but no order had been issued, Carol filed an affidavit of her accountant which stated Carol’s 1984 income as $11,749. Francis objected to this entry and the court ordered the taking of the accountant’s deposition on January 16, 1986 at Francis’ expense.

The trial judge rendered his ruling on February 27, 1987, twenty-six months after the hearing. The District Court concluded that no cost of living adjustment should be made on Francis’ Alaskan salary before comparing it to Carol’s under Montana’s Guidelines for Determining Child Support. Francis was ordered to pay $926.27 per month in child support, maintain a medical insurance policy for the children and have both children named as beneficiaries on a life insurance policy, pay the costs of private school tuition, and pay transportation costs for visitation. Francis was also ordered to pay Carol’s attorney fees.

Francis appeals the District Court’s findings of fact, conclusions of law and judgment on the following issues:

(1) Did the District Court abuse its discretion in making the child support award by miscalculating Carol’s income and failing to properly apply the new Guidelines for Determining Child Support so that substantial injustice occurred?

(2) Did the District Court err in granting attorney fees?

(3) Was there improper admission of pre-divorce support history?

This Court recently adopted the Uniform District Court Rule On Child Support Guidelines (Mont. 1987), [227 Mont. 1,] 44 St.Rep. 828 (Guidelines). The Guidelines are a suggested procedure for the determination of child support. Although the Guidelines are not expressly binding, when used by the District Court, all findings are reviewable. Absent a clear showing of abuse of discretion, the District Court will be upheld. Marriage of Ensign (Mont. 1987), [227 Mont. 357,] 739 P.2d 479, 482, 44 St.Rep. 1146, 1149; In Re Marriage of Ryan (Mont. 1986), [222 Mont. 188,] 720 P.2d 691, 693, 43 St.Rep. 1163, 1165. We find that the District Court abused its discretion in this case.

As to issue number one, Francis alleges error committed on the part of the trial court in calculating Carol’s income. Francis argues that the court improperly permitted income deductions for support determination solely because they are allowed tax deductions by the Internal Revenue Service.

The Guidelines contain a suggested work sheet that the District Court followed:

1. Gross Income Petitioner (Carol) Respondent (Francis)
a) earnings. 1983 $32,857.00
1984 15,848.00 $43,174.00
$48,705.00
2-year average: $24,352.50
b) imputed income.
wood gathering/hunting $4,800.00
rental in Missoula 3,000.00
c) asset value $8,325.60
d) business loss 1983 $ 8,400.00
1984 4,099.00
2-year average: ($6,249.50)
TOTAL $18,103.00 $59,299.60
2. Deductions
a) taxes
self-employment 1983 $ 4,964.00
1984 1,660.00
$ 6,624.00
2-year average: 3.312.00
state & federal income taxes
1983 223.00
1984 1.723.00 $8,793.41
1.946.00
2-year average: 973.00
b) mandatory retirement $6,045.06
c) medical insurance paid on behalf of children. (Respondent’s Exhibit 6) $1,874,00
$4,285.00 $16,712.47
3. Net Available Resources
$13,818.00 $42,587.13

The gross income figure adopted by the court for Carol was for two years. The court found Carol made $32,857 in 1983, and $15,848 in 1984. The trial court added the ‘83 and ‘84 income figures for a total of $48,705 and then divided by two for a two-year average income of $24,352.50. The District Court stated in paragraph seven of its findings of fact that Carol was confused as to her income and that the affidavit and deposition testimony of her accountant was [t]he more credible and reliable evidence . . .’’of Carol’s income.

The accountant, Tracy Blakeslee, submitted an affidavit and copies of Carol’s tax return for 1984. The return showed net income of $15,848. Blakeslee then subtracted $2,939 for depreciation on P & C Rentals, $1,002 for partnership business expenses paid previously, and $158 for depreciation on a desk. This left Carol with an income of $11,749 for 1984. For 1983, there was a $5,276 depreciation loss claimed on P & C Rentals and a loss claim of $1,110 for exotic cats.

The court found that there was an average business loss of $6,249.50 ($8,400 for 1983 and $4,099 for 1984). Francis argues, and we agree, that these losses (with the exception of the $1,002 claimed for business expenses) although allowable for income tax deduction purposes, should not be used to calculate child support. Depreciation is a form of accounting which does not directly correlate to the amount of cash on hand of an individual. When analyzing income under the Guidelines, it is the disposable income of the parent, and not their income tax returns alone, which need be considered by the court.

The Colorado Legislature adopted similar Guidelines effective November 1, 1986. The former chairman of the Colorado Bar Association Family Law Section, Stephen J. Harhai, wrote an article focused on possible problems with those Guidelines. He states:

“For the non-wage earner, the Guidelines use a standard accounting definition of income: gross receipts less ordinary and necessary business expenses. Excluded from expenses are accelerated depreciation, the (now repealed) investment tax credit and any other expense the court deems inappropriate.” (Emphasis added.)

Harhai, Key Issues in the Colorado Child Support Guidelines, 16 Colo. Lawyer, 51-52 (Jan., 1987).

Under the Colorado statute, “ ‘ordinary and necessary expenses’ does not include amounts allowable by the internal revenue service for the accelerated component of depreciation expenses . . .” See, Col.Rev.Stat. 14-10-115(7) (a)(II)(B).

This Court deems that the claimed “legitimate business expenses” of depreciation, on the rental units for 1983 and 1984 and on the desk, plus the expense claimed for exotic cats both fall within excluded expenses in determination of child support.

The District Court should also reconsider the claimed $1,002 previous business expenses claimed by Carol on her 1984 returns to ensure that these are properly deductible. We do not hold that income tax returns are not a valuable tool in the determination of child support as suggested in Part 1 of the Guidelines, but the District Court has always been vested with discretion under the broad standards of Section 40-4-204, MCA, which we feel requires scrutiny of all deductions and exemptions claimed by either parent.

We note also that in the District Court’s determination as to imputed income and assets that further inquiry should occur upon remand. For Francis’ gross income, the trial court imputes $4,800 for Francis’ wood gathering and hunting and values his assets at $8,325.60. The assets include a $900 interest in a riverboat and motor, $900 in a snowmachine, $250 in a 3-wheeler, $800 in a stock trailer and $250 in a sled and trailer. This $3,100 should possibly be removed in the calculation of the assets value total because they are used in generating the imputed income from wood gathering, hunting and fishing.

Part 4, Assets as income, of the Guidelines states:

“[T]he assessment of assets should exclude from consideration such non-income and non-depreciable producing assets of ‘reasonable’ value such as a permanent home, farm land, furnishings, and one automobile. Also excluded should be income producing assets such as real property in the form of a farm or business, vehicles, tools, or instruments used to produce a primary source of income. (Emphasis added.)”

Francis’ imputed income also includes $3,000 in rental income. We believe, as Carol argued, that this rental unit was Francis’ cabin in Alaska, not Missoula as the order states. If this is the case, the minor error should be corrected.

Carol claims that if the District Court would have used the formula that this Court approved of in In Re the Marriage of Carlson (Mont. 1984), [214 Mont. 209,] 693 P.2d 496, 41 St.Rep. 2419, that Francis would have received less than he did under the Guidelines. The Carlson formula, as we have previously stated, is only a suggested guideline and therefore is not binding in this case. Marriage of Ensign, supra, 739 P.2d at 482, 44 St.Rep. at 1149; In Re Marriage of DiPasquale (Mont. 1986), [220 Mont. 497,] 716 P.2d 223, 226, 43 St.Rep. 557, 561.

We do, however, find Carlson helpful for two reasons. First, Carlson states the policy that the comparative earning figures of the parents “[m]ust realistically reflect what the parents are capable of earning using their actual earnings as a guideline.” Carlson, supra, 693 P.2d at 500, 41 St.Rep. at 2423. Here, we do not believe that the figures presented and used by the District Court accurately reflect actual earnings.

Secondly, Carlson facilitates a determination of whether the court erred in granting attorney fees, appellant’s second issue. The District Court found in its conclusions of law that Francis “[m]ust pay [Carol’s] attorney fees in this action to modify the settlement agreement.” Under paragraph XII of the agreement entered into by Carol and Francis on June 10, 1983, the parties agreed that in any action to “[e]nforce, modify or interpret this agreement, the court . . . shall award a reasonable attorney fee to the successful party.”

It is clear that the parties contracted as to the child support of the Mitchell children in paragraph X of the agreement. Pursuant to Section 40-4-201(2), MCA, this does not bind the parties.

Carlson states the rule applicable to this situation:

“In all divorce matters relating to children, the best interest of the children control. While terms of a contract may be introduced as evidence in some instances, the custody and support of children are never left to contract between the parties.” (Emphasis added.)

Carlson, supra, 693 P.2d at 500, 43 St.Rep. at 2424; see also In re the Marriage of Neiss (Mont. 1987), [228 Mont. 479,] 743 P.2d 1022, 1024, 44 St.Rep. 1695, 1697.

Additionally, on April 18, 1984, Carol moved for entry of a decree adopting the settlement agreement, but requested the court reserve the issue of child support for a later time. After a hearing on October 26, 1986, the District Court granted Carol’s request and ordered the adoption of the agreement in all respects except for child support.

A review of the record shows the majority of subsequent litigation centered around determination of the parties’ assets, liabilities and income for child support reasons. Even though Francis failed to promptly comply with discovery, the assessment of attorney fees was never directed to this noncompliance. The District Court stated Francis was forced to pay because the court had to “modify” the settlement agreement. Since most of the following litigation concerned the issue of child support, we find that the District Court abused its discretion in assessing attorney fees under the facts of this case.

The final issue raised is whether the court erred in permitting testimony of pre-divorce history. Francis claims that the testimony was irrelevant to the factors listed in Section 40-4-204, MCA. That testimony dealt with where the children lived, housing costs, and a lack of a regular payment by Francis during the time he was in Alaska (specifically 1977).

It is true that the District Court is to consider all relevant factors without regard to marital misconduct in determining child support. Section 40-4-204(1), MCA. Carol points out though, that these factors may be considered if it aids in determination of “current child support issues.” The relevancy and possible prejudice of such testimony may be determined upon rehearing.

Francis additionally argued that the court erred in failing to adjust his income according to cost of living expenses in Alaska as compared to Montana. We neither bless this argument nor condemn it. The Guidelines do not specifically address whether cost of living in an area is a legitimate consideration. In appropriate cases, where there is evidence presented that shows there is substantial disparity between the value of the dollar in different locales, the court may in equity need to make appropriate adjustments.

We remand this case to the District Court for a proper determination of the parties’ income and assets and for more accurate and equitable application of the Child Support Guidelines.

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

MR. JUSTICE HARRISON,

specially concurring:

I concur. As noted in the majority opinion, I wish to focus attention to the fact that this matter commenced some seven years ago, September of 1981, with the filing of the action for dissolution. Even after numerous hearings, no opinion was rendered by the trial judge for some twenty-six months after the hearings. In this state, litigants are entitled to have litigation handled in a more expeditious manner — this case does not evidence that fact. It is my firm hope that by calling attention to this factor, the judiciary of this state will check their calendars and resolve cases faster, this case is not a good example of handling cases in a timely fashion.

Under the circumstances of this case, we have a litigant in the state of Alaska where the cost of living is far above that in Montana. The trial judge must adjust the income of the parties according to a cost of living, in this case the person to pay, the husband.