author: JUSTICE HUNT

text:
    DeTIENNE ASSOCIATES LIMITED PARTNERSHIP and PARK PLAZA HOTEL, INC., Plaintiffs and Respondents, v. MONTANA RAIL LINK, INC., Defendant and Appellant.
    No. 93-349.
    Submitted on Briefs November 10, 1993.
    Decided February 17, 1994.
    51 St.Rep. 125.
    264 Mont. 16.
    869 P.2d 258.

      For Defendant and Appellant: Edward A. Murphy, Datsopoulos, MacDonald & Lind, Missoula.

      For Plaintiffs and Respondents: Patrick E. Melby, Luxan & Murfitt, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant, Montana Rail Link, Inc., appeals from that portion of a judgment of the First Judicial District Court, Lewis and Clark County, awarding damages to respondents, DeTienne Associates and Park Plaza Hotel, Inc., for business interruption losses in excess of reimbursed insurance proceeds which were caused by a prolonged power outage after an explosion caused by a collision between Montana Rail Link trains.

Affirmed.

The issues are as follows:

1. Did the District Court err when it disregarded several of Montana Rail Link’s proposed exhibits in determining Park Plaza’s business interruption losses?

2. Was the District Court’s finding that Park Plaza suffered $405,000 in business interruption losses clearly erroneous?

Respondent, DeTienne Associates (DeTienne), is a Montana limited partnership with its principal place of business in Helena. Respondent, Park Plaza Hotel, Inc. (Park Plaza), is a Montana corporation also with its principal place of business and hotel in Helena. DeTienne owns the hotel and Park Plaza operates it. Farmers Union Mutual Insurance Company (FUMI) is a Montana insurance company operating out of Great Falls, which insured Park Plaza under a special multi-peril policy of insurance. Montana Rail Link, Inc. (MRL), operates a railroad with tracks and a rail yard in Helena.

On February 2,1989, MRL’s rail cars, stopped on a mountain grade west of Helena, became uncoupled from the engine and rolled back toward Helena, colliding with MRL’s yard engines. An explosion resulted which caused an extensive power outage in the Helena area. The power outage lasted four or more hours during extremely cold weather. During the power outage, Park Plaza’s hot water heating system and reheat coils froze and broke. After heat was restored, water leaked from the broken pipes causing considerable damage to the hotel’s ceilings, carpet, drywall, paneling, and a domestic hot water heater and tank.

In November 1989, Park Plaza started a remodeling project on some previously planned additions which delayed the demolition and reconstruction processes of some of the hotel’s damaged areas.

On November 19, 1990, FUMI brought suit against MRL in Cascade County. On February 2,1991, Park Plaza brought suit in Lewis and Clark County to recover damages. On May 31, 1991, FUMI intervened to assert its right of subrogation against MRL, and on October 22,1991, its suit against MRL was transferred to Lewis and Clark County. On November 7,1991, the First Judicial District Court consolidated the two suits and dismissed FUMI’s separate complaint in intervention. On August 11, 1992, the parties stipulated that the issue of negligence would not be tried and that trial would be limited to the issue of proximate cause and damages. On August 27, 1992, the court granted partial summary judgment against MRL and in favor of Park Plaza and FUMI for damages caused by the power outage.

Park Plaza and FUMI could not agree on the amount of the personal property and business interruption losses. Therefore, Park Plaza invoked the appraisal clause contained in its insurance policy with FUMI to determine the losses. Pursuant to the appraisal clause under the insurance policy, each party selected an appraiser, and those appraisers selected a third appraiser to serve as an umpire in the evaluation of claims at settlement negotiations. The appraisers found that Park Plaza’s personal property loss was $24,006. But because the business interruption losses exceeded the $300,000 policy limit, FUMI’s appraiser did not calculate the loss because FUMI was not obligated to pay Park Plaza any excess. FUMI’s appraiser determined a reasonable indemnity period to be February 2,1989, through September 18, 1989.

By order on October 15, 1992, the court granted Park Plaza and FUMI’s motion to exclude MRL from calling any witnesses at the trial on October 19 and 20, 1992. At trial, Park Plaza sought $491,111 in business interruption losses for the period February 2,1989, through December 31, 1989. Park Plaza based this claim on 1989 operating losses of $89,060, 1989 extraordinary income losses of $59,002,1989 projected lost profits of $329,866, and 1990 bus tour losses of $13,183.

On March 26, 1993, the court found that Park Plaza’s total business interruption losses reasonably related to the power outage were $405,000, and awarded $105,000 to Park Plaza and $300,000 to FUMI. The court also found that the time period for purposes of determining the business interruption losses was February 2, 1989, through November 1,1989.

At trial, the court did not rule on the admissibility of the MRL’s proposed Exhibits H and I at issue on appeal. However, the court effectively denied their admission when, in its conclusions of law, it stated that it had not used the exhibits in determining the amount of Park Plaza’s business interruption losses.

On April 23, 1993, MRL filed motions for a new trial or alternatively to amend the court’s findings of fact. The court denied the motions. On July 2, 1993, MRL filed this appeal of the judgment for both Park Plaza and FUMI.

Subsequently, Park Plaza and FUMI each filed cross-appeals against MRL asserting that the record supported a much higher award of damages for the loss of business than that found by the District Court. However, after MRL satisfied FUMI’s judgment, both MRL and FUMI dismissed appeals against each other on August 16, 1993. Similarly, on appeal, after Park Plaza considered this Court’s applicable standard of review, it withdrew its cross-appeal against MRL. Of the total damages of $533,596.49 found by the District Court, MRL appeals that part of the award related to business interruption losses, $405,000, and specifically that portion Park Plaza claims to be in excess of the insurance reimbursement, $105,000.

ISSUE 1

Did the District Court err when it disregarded several of Montana Rail Link’s proposed exhibits in determining Park Plaza’s business interruption losses?

During cross-examination of FUMI’s appraiser, MRL attempted to introduce two exhibits over the objections of Park Plaza and FUMI. MRL’s proposed Exhibits H and I were a spreadsheet and an attached cover letter which had been prepared by Park Plaza’s appointed appraiser and sent to FUMI’s appointed appraiser during their settlement negotiations. The spreadsheet purported to show FUMI’s subrogation claim against MRL from the period February through December, 1989. The cover letter revised that claim figure and also indicated that it was part of settlement negotiations in resolving the claim between Park Plaza and FUMI. FUMI’s appraiser testified that he had not relied on either document when he determined Park Plaza’s business interruption losses. Park Plaza and FUMI objected to admission of both exhibits on three grounds: (1) that FUMI’s appraiser did not rely on the documents when he determined Park Plaza’s business interruption losses; (2) that they were inadmissible as hearsay under Rule 802 of the Montana Rules of Evidence; and (3) that they were inadmissible as part of attempts to negotiate a compromise under Rule 408, M.R.Evid.

MRL asserts that the exhibits support its analysis of Park Plaza’s business interruption losses. FUMI’s expert put the letter and spreadsheet into his report submitted to MRL’s attorney in an attempt to generate some settlement discussions with MRL and to give the attorney an overview of the case’s history. However, FUMI’s expert testified that he did not rely on the exhibits to make his assessment of Park Plaza’s business interruption losses. Thus, the evidence was not relevant to the issue of damages because it was not the basis upon which the expert formed his opinion. Rules 402 and 703, M.R.Evid.

The rules of evidence define hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), M.R.Evid. Hearsay is not admissible unless it falls under an exception in another of the rules of evidence. Rule 802, M.R.Evid. The cover letter and spreadsheet were prepared by Park Plaza’s appraiser, the declarant who did not testify at trial. Under Rules 801(c) and 802, M.R.Evid., these proposed exhibits were hearsay and properly excluded.

In the cover letter, Park Plaza’s appraiser stated: “I hope we can make some progress on resolving this claim. ... After you have had an opportunity to review this [attached spreadsheet], please give me a call so we can make settlement on this claim.”

MRL asserts that although Rule 408, M.R.Evid., excludes conduct or statements made in compromise negotiations, it does not exclude evidence otherwise discoverable. MRL argues that the appraiser’s spreadsheet report and cover letter were a statement against interest of a party opponent under Rule 801(d)(2)(A) and (D), M.R.Evid., and thus discoverable.

The rules of evidence specifically allow a trial court to exclude evidence of accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to its amount. Rule 408, M.R.Evid. That rule reads in pertinent part:

Evidence of ... accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. [Emphasis added],

The record indicates that although the early results of Park Plaza and FtJMI’s negotiations concerning the amount of business interruption losses may otherwise have qualified as statements against their own interest, they were not made as independent statements of fact, but instead were made as offers for an amicable compromise between those parties. Lenahan v. Casey (1912), 46 Mont. 367, 379, 128 P. 601; Gamble-Skogmo, Inc. v. McNair (1951), 98 F. Supp. 440, 442; A. E. Korpela, Annotation, Admissibility of Admissions Made in Connection With Offers or Discussions of Compromise, 15 A.L.R.3d 29-30 (1967). Evidence of attempts to compromise a settlement are properly excluded based on the privilege grounded in public policy to encourage compromises and settlements. The court properly excluded the letter and spreadsheet as part of settlement negotiations under Rule 408, M.R.Evid.

The standard of review for discretionary trial court rulings is whether the trial court abused its discretion. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 604.

We hold that the evidence is not admissible, and the District Court did not abuse its discretion. We affirm the District Court on this issue.

ISSUE 2

Was the District Court’s finding that Park Plaza suffered $405,000 in business interruption losses clearly erroneous?

We will affirm the findings of a trial court sitting without a jury if the findings of fact are not clearly erroneous. Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 322, 820 P.2d 1285, 1287. However, we will substitute our judgment for that of the District Court if we find that it is not supported by substantial credible evidence, misapprehends the effect of the evidence, and leaves us with the definite and firm conviction that a mistake has been committed. Interstate Prod., 820 P.2d at 1287.

As stated, at trial the court reserved ruling on the objections to MRL’s proposed Exhibits H and I, and allowed FUMI’s appraiser to testify about their contents. However, the court did not rely on the exhibits when it evaluated Park Plaza’s business interruption losses, and so stated in conclusion of law number nine.

MRL asserts that the record contained no evidence to support the court’s award of $405,000, and that with evidence contained in Exhibits H and I, MRL could have established that Park Plaza’s business losses were only $321,279.

The record shows substantial credible evidence with which the court could support an award of $405,000 in business interruption losses to Park Plaza. Park Plaza’s expert accounting witness on damages testified that for the period of February 2, 1989, through December 31, 1989, business interruption losses were at least $490,491. This expert testified from a schedule which he had prepared for his damage claim summary. That schedule actually put those losses at $491,111. In addition, DeTienne’s general manager testified that the total business losses were $512,623 for the same period. Park Plaza’s and FUMI’s expert witnesses testified that DeTienne’s general manager had made reasonable assumptions in determining the business interruption losses. DeTienne’s general manager also testified that in November 1989, Park Plaza started a previously planned remodeling project. On these facts, the court had sufficient evidence with which to support its award for business interruption losses to Park Plaza in excess of MRL’s claim of only $321,279.

The court also determined that the business interruption losses award should cover the period from February 2, 1989, through November 1, 1989, instead of through December 31,1989. The court also had sufficient evidence with which to make this determination because of Park Plaza’s self-imposed business interruption losses attributable to delay caused by its November 1989 remodeling project. From the foregoing, it is clear that the first part of the three-part test in Interstate Prod, is satisfied because there is substantial credible evidence to support the court’s findings. The second and third parts are satisfied because we hold that the District Court did not misapprehend the effect of the evidence, and we are not left with a firm and definite conviction that a mistake had been committed.

We hold that the District Court’s finding that Park Plaza suffered $405,000 in business interruption losses was not clearly erroneous and we affirm the District Court on this issue.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON and WEBER concur.


source: Caselaw Access Project

author: JUSTICE HARRISON JUSTICE TRIEWEILER

license: Public Domain

text:
    IN THE MATTER OF S.C., A Youth in Need of Care.
    No. 93-146.
    Submitted on Briefs November 18, 1993.
    Decided February 22, 1994.
    51 St.Rep. 129.
    264 Mont. 24.
    869 P.2d 266.

      For Appellant: Bard G. Middleton, Billings.
    For Respondent: Joseph P. Mazurek, Attorney General, Elizabeth L. Griffing, Ass’t Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Denise Ackerman, Deputy, Damon L. Gannett, Gannett & Ventrell, Billings (Guardian Ad Litem).
   JUSTICE HARRISON

delivered the Opinion of the Court.

Appellant, M.C., appeals the Thirteenth Judicial District Court, Yellowstone County, order which terminated her parental rights of her seven-year-old daughter, S.C., and awarded permanent custody and care of S.C. to the Montana Department of Family Services. We affirm.

M.C. presents two issues:

1. Did the District Court err by deciding that two treatment plans were appropriate to M.C.’s needs when the social worker testified that the treatment plans did not meet M.C.’s needs?

2. Did the District Court err by deciding that M.C.’s mental condition and chaotic lifestyle were unlikely to change within a reasonable time when the court based that decision, in part, on testimony that did not exist in the record?

S.C. was born on May 2, 1985. M.C. is the natural mother of S.C. and S.C.’s natural father is deceased. The Department of Family Services’ (Department’s) first contact with M.C. and S.C. was on May 22, 1985, when M.C. asked the Department to watch S.C. The Department communicated with M.C. about S.C. many more times in 1985. The case was closed in 1986.

However, in April 1988, the Department received a report that M.C. contemplated hurting S.C., who, at that time, was almost three years old. The counselor arranged for S.C. to go to her maternal grandfather’s home in Helena, Montana. S.C. was in Helena until August 1988. M.C. later informed the Department that S.C. was in her care in Billings. The Department assigned a social worker and child care was arranged for S.C.

In October 1989, the Department petitioned for temporary custody of the child. On October 30,1989, the District Court named S.C., then four years old, a youth in need of care and granted the Department temporary custody of S.C. The Department’s goal was to stabilize M.C. and reunite her with her daughter at a later date.

On May 2, 1990, M.C. and S.C. were reunited. However, almost immediately after this placement, M.C. experienced parenting problems. By July 1, 1990, she was depressed to the point that she discussed the possibility of returning S.C. to foster care. In August 1990, S.C. was returned to her maternal grandfather and step-grandmother in Helena.

In October 1990, the Department again petitioned the court for temporary custody of S.C. M.C. acknowledged her inability to parent S.C. and consented that S.C. be placed in the Department’s temporary custody. The court placed S.C. in the Department’s temporary custody through October 1991.

In October 1991, the Department petitioned the court for permanent custody of S.C. and termination of M.C.’s parental rights. The Department stayed the petition, however, in a last-ditch effort to reunite M.C. with S.C. The court continued the temporary custody order through October 1992 and ordered M.C. to complete a treatment plan.

The Department and M.C. signed a treatment plan and the court approved the plan as “appropriate to the family’s needs” on October 10, 1991. Between December 11, 1991, and May 20, 1992, M.C. complied with the treatment plan. On May 20, 1992, M.C. was so depressed that she was admitted to the hospital. This setback delayed S.C.’s return to her care.

On June 29, 1992, the court approved a second treatment plan as appropriate to the needs of the family. M.C. complied with the second treatment plan. On July 31, 1992, S.C., then seven years old, was returned to M.C.’s care.

While in her mother’s care, S.C. stayed with her maternal grandmother three to four nights a week. S.C.’s maternal grandmother lived with a man who was charged with sexually assaulting a child. The Department instructed M.C. not to allow any contact between that man and S.C. Despite the Department’s instructions, S.C. continued to stay with her maternal grandmother three to four nights a week.

On August 29,1992, M.C. was hospitalized because she overdosed on prescription drugs. Three weeks later, M.C. attempted to commit suicide by overdosing on prescription drugs. During M.C.’s hospitalizations, S.C. was in the care of her maternal grandmother and the man charged with sexual assault.

The Department’s attempt to reunite M.C. and S.C. was cut short. The Department decided to place S.C. back into foster care. Tragically, M.C. only parented S.C. for seven weeks, which included the three to four nights a week in which M.C.’s mother took care of the child.

Since October 1989, S.C. has only been in M.C.’s care for a total five and one-half months. At best, M.C. has had minimal contact with S.C., even when the Department returned the child to her care.

In October 1992, M.C. was hospitalized four more times for mental problems and suicidal tendencies. All told, M.C. was hospitalized seven times in a five and one-half month period for mental problems and suicidal tendencies.

On October 6, 1992, the Department petitioned the court for permanent custody of S.C., who was then seven and one-half years old. The Department also petitioned the court to terminate M.C.’s parental rights. The District Court, after hearing the evidence, issued its findings of fact, conclusions of law and judgment on January 21, 1993. The court terminated M.C.’s parental rights and awarded permanent custody and care of S.C. to the Department. M.C. appeals.

I

Did the District Court err by deciding that two treatment plans were appropriate to M.C.’s needs when the social worker testified that the treatment plans did not meet M.C.’s needs?

Section 41-3-609(1), MCA, provides that a court may terminate a person’s parental rights if it finds that:

(c) the child is an adjudicated youth in need of care and both of the following exist:
(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time[.] [Emphasis added.]

“The State has the burden of proving by ‘clear and convincing’ evidence that the statutory criteria under [§] 41-3-609, MCA, have been met.” Matter of J.H., S.H. & N.H. (1992), 252 Mont. 31, 34, 825 P.2d 1222, 1224. Our standard of review when examining a district court’s decision to terminate parental rights is whether the court interpreted the law correctly and whether the court’s findings of fact are supported by substantial evidence. Matter of F.M. (1991), 248 Mont. 358, 363, 811 P.2d 1263, 1266; Matter of J.W. & J.C. (1988), 232 Mont. 46, 50, 757 P.2d 769, 771.

In the instant case, the District Court adjudicated S.C. a youth in need of care, approved two treatment plans and decided that the plans were appropriate. The District Court found that the plans addressed M.C.’s mental health problems and her inept parenting skills. The court in Conclusion of Law No. 3 stated:

The Treatment Plans for [M.C.] were appropriate for the needs of this family, and were approved by this Court. They were complied with, but were not successful in resolving [M.C.’s] long-term mental illness problems.

M.C. argues that the social worker testified that the treatment plans did not meet her needs and, thus, the District Court erred when it decided that the treatment plans were appropriate for the needs of this family. M.C.’s argument lacks merit.

The social worker’s testimony, when read in context with his remaining testimony, established that he was simply expressing that M.C. had shown no improvement even though she was attending psychological treatment and counseling. From his testimony it is clear that the treatment plans were appropriate, but M.C. was unable to improve from the treatment she received.

He testified that the Department established an elaborate support system which included counselors, psychiatrists, and programs to improve M.C.’s mental health. Even with that support system in place, M.C. was hospitalized seven times for mental health reasons and she even attempted suicide. In short, M.C. complied with the treatment plans, but the treatment plans were not successful in resolving her mental health problems.

It is well established that a parent must not only comply with the treatment plan, but the treatment plan must also be successful. J.H., 825 P.2d at 1226. After reviewing the record in this case we conclude that the District Court properly determined that the treatment plans were appropriate and they were complied with, but were not successful in resolving M.C.’s long-term mental illness problems.

II

Did the District Court err by deciding that M.C.’s mental condition and chaotic lifestyle were unlikely to change within a reasonable time when the court based that decision, in part, on testimony that did not exist in the record?

The District Court in Finding of Fact No. 27 stated:

[w]hen asked whether [M.C.’s] condition was likely to change in a reasonable amount of time, [the social worker’s] response was negative because of [M.C.’s] on-going mental illness and her past history of mental illness. [M.C.’s doctor]... was also not able to provide a time frame for improvement sufficient to allow parenting.

These facts provided the basis for Conclusion of Law No. 3:

[M.C.’s] mental illness renders her unfit and unable to provide [S.C.] with adequate parental care and guidance. Her conduct and condition has [sic] remained unchanged the past year and is [sic] unlikely to change within a reasonable time.

At trial, the social worker was asked this question: “In your opinion is [M.C.’s] conduct [or] condition that renders her unfit likely to change in a reasonable time?” M.C.’s attorney objected to the question for lack of foundation and the court sustained the objection. The social worker was never allowed to answer the question. Thus, M.C. argues that the first sentence of Finding of Fact No. 27 is not supported by substantial evidence.

Although the District Court based its decision on testimony which did not exist, the court’s mistake in Finding of Fact No. 27 does not constitute reversible error. This Court has repeatedly stated that a district court’s decision will not be reversed or remanded when the eventual result of the case would be the same without the error. In re Marriage of Cannon (1985), 215 Mont. 272, 275, 697 P.2d 901, 903. In this case, disregarding the first sentence of Finding of Fact No. 27, there was still substantial evidence to support the ultimate finding and conclusion that M.C.’s mental condition, which rendered her unfit, was unlikely to change within a reasonable time.

M.C.’s psychiatrist and therapist both testified that M.C. was unable to take care of herself, let alone take care of the needs of a seven-year-old girl. M.C. could not put S.C.’s needs before her own.

Even when M.C. cared for S.C., her care was, at best, sporadic, inconsistent and unstable. At the time of trial she could not care for S.C. and she has been unable to care for the child during the past three years. In fact, in those three years, S.C. was only in M.C.’s care, off and on, for a total of five and one-half months. Moreover, while in M.C.’s care during those five and one-half months, S.C. spent three to four nights a week at her maternal grandmother’s house, where her grandmother lived with a man who was charged with sexually assaulting a child.

M.C.’s psychiatrist testified that S.C. suffered from major depression, recurrent generalized anxiety and a borderline personality disorder. M.C.’s psychiatrist could not provide a time limit for her recovery.

In evaluating whether a parent’s conduct or condition rendering her unfit is -unlikely to change within a reasonable time:

the court [must] consider but is not limited to the following:

(a) emotional illness, mental illness, or mental deficiency of the parent of such duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time;
(b) a history of violent behavior by the parent;
(c) a single incident of life-threatening or gravely disabling injury to or disfigurement of the child caused by the parent;
(d) excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent’s ability to care and provide for the child;
(e) present judicially ordered long-term confinement of the parent;
(f) the injury or death of a sibling due to proven parental abuse or neglect; and
(g) any reasonable efforts by protective service agencies that have been unable to rehabilitate the parent.

Section 41-3-609(2), MCA.

Here, the court considered M.C.’s mental illness. Since 1989, M.C.’s mental health has severely affected her parenting ability. First, she threatened to hurt S.C. Next, several mental health hospitalizations forced M.C. to send S.C. into different homes and even to her mother, who lived with a man charged with sexual assault of a child. Most recently, in the five and one-half months before trial, M.C. was hospitalized seven times for suicidal tendencies and mental health problems.

The court also considered the Department’s extensive efforts in attempting to rehabilitate M.C. The Department set up an elaborate support system for M.C., including psychiatrists, counselors and social workers. Despite that support system and the Department’s efforts to improve her mental health, M.C.’s mental health was only slightly improved, if at all.

She attended counseling and parenting classes, but she was unable to implement what she learned and she failed to use that information to change her lifestyle. Her needs were too great and S.C.’s needs went by the wayside for three years while the Department futilely attempted to reunite M.C. with S.C.

Moreover, the District Court was bound to give paramount consideration to the urgency of S.C.’s needs and S.C’s needs take precedence over M.C.’s parental rights. See J.H., 825 P.2d at 1224-25; see also Matter of H.R.B. & K.R.B. (1989), 239 Mont. 387, 390, 780 P.2d 1139, 1141. Section 41-3-609(3), MCA, mandates:

[i]n considering any of the factors in [§ 41-3-609(2)] ..., the court shall give primary consideration to the physical, mental, and emotional conditions and needs of the child.

Here, the testimony established that S.C. needed stability and predictability in her life. The testimony confirmed that further delay in providing S.C. with stability and predictability would cause her substantial emotional harm. In short, S.C.’s emotional well-being was threatened by M.C.’s chaotic and unstable lifestyle.

After a review of the record, we conclude that the District Court’s ultimate finding — that M.C.’s mental health rendered her unfit, to parent and her mental health was not likely to improve in a reasonable time — was supported by substantial evidence. Specifically, 1) expert testimony established that M.C. had all she could handle just taking care of herself; 2) M.C.’s mental health only improved slightly during the three years the Department worked with her; 3) of those three years, she was only able to parent S.C. for five and one-half months; 4) even with the Department’s support system, M.C. was hospitalized seven times in a five and one-half month period for mental health and suicidal tendencies; 5) M.C. left S.C. in the care of her mother, who lived with a man charged with sexually assaulting a child; and 6) most importantly, S.C.’s needs for stability and predictability were extremely urgent. The District Court correctly determined that S.C.’s emotional needs prevailed over M.C.’s parental rights. See H.R.B., 780 P.2d at 1141. We uphold the court’s decision to terminate M.C.’s parental rights.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY and WEBER concur.

JUSTICE TRIEWEILER

specially concurring.

I specially concur with the result of the majority opinion. However, I do not agree with all that is said therein.

I agree that there was substantial evidence to support the District Court’s finding that M.C.’s mental health rendered her unfit to serve as S.C.’s parent and that that condition was unlikely to improve in the near enough future to be of benefit to S.C. However, I disagree with the majority’s repeated reference to the irrelevant fact that M.C.’s mother lived with a man “charged with sexually assaulting a child.”

The mere fact that someone with whom S.C. was allowed to associate was “charged” with something has no significance. If there is any place where a person ought to be entitled to a presumption that a mere charge of wrongdoing has no legal significance, it is in the highest court of the state. And yet, the majority opinion embarrassingly refers no fewer than five times to the fact that S.C. was allowed to associate with a person “charged” with criminal conduct. Those references are unnecessary and inappropriate bases for the majority’s decision.


author: JUSTICE TRIEWEILER

text:
    IN THE MATTER OF THE ESTATE OF JULIAN RAMIREZ, JR., Deceased. BETTY J. RAMIREZ, Petitioner and Appellant, NICHOLAS REID RAMIREZ, Respondent.
    No. 93-466.
    Submitted on Briefs January 27, 1994.
    Decided February 22, 1994.
    51 St.Rep. 133.
    264 Mont. 33.
    869 P.2d 263.

      For Petitioner and Appellant: Craig W. Holt, Billings.
    For Respondent: Damon L. Gannett, Gannett & Ventrell, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Betty J. Ramirez petitioned the District Court of the Thirteenth Judicial District, in Yellowstone County, to admit letters authored by her deceased son, Julian Ramirez, to probate as his holographic will. After hearing evidence, the District Court denied admission of the proposed will to probate. The petitioner appeals from the order of the District Court. We reverse.

The following issue is presented on appeal:

Did the District Court err when it concluded that the documents offered as the holographic will of Julian Ramirez were unsupported by testamentary intent?

FACTUAL BACKGROUND

Julian Ramirez, Jr., was incarcerated in the Yellowstone County Detention Facility between November 21, 1991, and December 3, 1991. During that time, he mailed a one-page, handwritten letter to his sister, Julie Ramirez, which contained the following unedited language:

Im gonna stay with mom and help her out mom did alot of things for me she paid off my car and always got me out of jail thats why I think mom should have everything if anything ever happens to me I also think she should have nicolas because Elaine doesnt take care of him but mom will take care of him

Between January 27, 1992, and February 28, 1992, Julian was again incarcerated in the Yellowstone County Detention Facility. During this time, he wrote another one-page letter to his sister, Julie. That letter stated in part (also unedited):

Im so tired of living I wish I could just kill myself. If anything ever does happen to me or I do something to myself tell mom I want her to have everything of mine

Neither letter was dated, but both were signed “Julian Ramirez.”

Julian Ramirez died as a result of an automobile accident on September 21, 1992, at the age of 22 years. At the time of his death, Julian had one child, a son, Nicholas, who is now three years old. There is no legal relationship between Julian and the child’s mother, Elaine Coburn.

On December 29, 1992, Betty Ramirez, Julian’s mother, filed a petition for formal probate of will, determination of testacy and heirs, and appointment of personal representative. She attached as Julian’s holographic will, the second letter he had written to Julie. Nicholas, through his attorney, objected to the admission of the alleged will. The District Court held a hearing on the matter on March 11, 1993. At the hearing, Betty offered the first letter Julian sent to Julie to supplement the letter she attached to the formal probate petition. On July 19,1993, the court issued its findings of fact, conclusions of law, and order, and denied admission of the letters to probate as holographic wills.

Did the District Court err when it concluded that the documents offered as the holographic will of Julian Ramirez were unsupported by testamentary intent?

In a nonjury trial, this Court will not disturb the district court’s findings of fact unless they are clearly erroneous. Rule 52(a), M.R.Civ.P.; Flikkema v. Kimm (1992), 255 Mont. 34, 37, 839 P.2d 1293, 1295. Our standard of review for questions of law is to determine whether the district court has correctly interpreted the law. Schaub v. Vita Rich Dairy (1989), 236 Mont. 389, 391, 770 P.2d 522, 523. The basis for this standard of review is that no discretion is involved when a tribunal arrives at a conclusion of law; the tribunal either correctly or incorrectly applies the law. Flikkema, 839 P.2d at 1295.

There are three requirements for a valid holographic will in Montana. An individual who is eighteen years or older and is of sound mind has the capacity to make a will. Section 72-2-301, MCA (1991). A holographic will meets the formalities of execution if its material provisions are in the handwriting of the testator and signed by the testator. Section 72-2-303, MCA (1991). Finally, the individual must have testamentary intent; he must intend that the document will dispose of his property after death. See Estate of Coleman (1961), 139 Mont. 58, 359 P.2d 502; In re Van Voast’s Estate (1954), 127 Mont. 450, 266 P.2d 377; In re Augestad’s Estate (1940), 111 Mont. 138, 106 P.2d 1087.

There is no dispute that Julian Ramirez had the capacity to make a will, and the District Court concluded that both letters met the statutory formalities for the execution of a holographic will. However, the District Court refused to admit the letters as a holographic will because the District Court concluded that both letters and the surrounding circumstances failed to reflect sufficient testamentary intent.

In previously addressing this issue, this Court has adopted several well-settled rules. The intention that must be present is the intention to dispose of property after the testator’s death. Van Voast, 266 P.2d at 378-79. There is no requirement that the testator realize that he is making a will, nor are there any particular words necessary to show a testamentary intent. Van Voast, 266 P.2d at 378. Because it is common for people to preface their wishes or directions with expressions like “if anything happens to me,” courts have long considered such language to indicate testamentary intent. Coleman, 359 P.2d at 503.

Whether sufficient testamentary intent is present in an alleged will should be determined by first looking to the writing itself. Van Voast, 266 P.2d at 378. However, if the intent is not clear from the writing, then the surrounding circumstances may be considered. Van Voast, 266 P.2d at 378.

In Augestad, 106 P.2d at 1088, we said that “[t]here is no definite fixed rule by which testamentary intent may be gauged. Each case must stand on its own peculiar facts and circumstances.” There, we held that rather than expressing testamentary intent, the letter of the decedent expressed an intention, at some time in the future, to make a will.

The District Court mistakenly concluded that Betty, the proponent of the will, had the burden to show the existence of Julian’s testamentary intent. According to § 72-3-310, MCA, it is the contestant of a will who has the burden of establishing lack of testamentary intent. Our review of the record causes us to conclude that that burden was not satisfied.

In this case, we conclude that both the document itself and the surrounding circumstances indicate testamentary intent. Julian was in jail, contemplating his death, and according to his sister, had asked her to save the letters and tell his mother about their content. On its face, it is abundantly clear that Julian’s second letter to “tell mom I want her to have everything of mine” indicates his intent that his property should pass to his mother upon his death.

We therefore reverse the order of the District Court and remand this case to the District Court for admission of the proposed will of Julian Ramirez to probate.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, NELSON and GRAY concur.


author: JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LANCE DIXON, Defendant and Appellant.
    No. 93-279.
    Submitted on Briefs January 7, 1994.
    Decided February 24, 1994.
    51 St. Rep. 135.
    264 Mont. 38.
    869 P.2d 779.

      For Defendant and Appellant: Gary E. Wilcox, Yellowstone County Public Defenders, Billings; William F. Hooks, Appellate Defender Office, Helena.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Ass’t Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, and Charles Bradley, Deputy Yellowstone County Attorney, Billings.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Thirteenth Judicial District Court, Yellowstone County. A jury convicted defendant Lance Dixon (Dixon) on two counts of sexual intercourse without consent. He appeals. We affirm.

Dixon presents two issues:

1. Whether the District Court erred by limiting Dixon’s cross-examination of the complaining witness, H.D.

2. Whether the District Court erred by denying Dixon’s motions for a mistrial based on alleged prosecutorial misconduct.

On New Year’s Eve, 1991, H.D. went with some friends to a local bar in Billings, Montana. While leaving the bar she became separated from her friends. Dixon was outside the bar and he and H.D. started talking. Dixon offered her a ride home which she refused.

Dixon then mentioned that he knew where her friends were and offered her a ride to find her friends. She accepted. Dixon told her that he left his car at a trailer where he was staying. Thus, at about 2:00 a.m., H.D. got into a cab with Dixon and the cab dropped them off at the trailer.

Dixon then told H.D. that he did not have his car keys and suggested that she enter the trailer since it was cold outside. H.D. testified that once inside the trailer, Dixon shoved H.D. down the hallway to a bedroom, where he forced her to have sexual intercourse with him. She also testified that he later forced her to perform oral sex on him.

Dixon admitted that the sexual acts occurred, but contended that H.D. consented to the sexual acts. A jury convicted Dixon and the District Court sentenced him to a total of thirteen years in the Montana State Prison, to run concurrent with a federal court sentence imposed on him. He appeals.

I

Did the District Court err by limiting Dixon’s cross-examination ofH.D.?

At trial, Dixon placed H.D.’s toxicology and lab reports into evidence, which indicated that H.D. had a blood alcohol level of .06 at 7:00 a.m. the morning after the incident. H.D. testified that she had consumed a glass of wine, maybe two beers and some champagne the evening before the sexual assault, but had no alcohol after midnight. H.D., then 20, also testified that she knew it was illegal to use a false identification card to purchase alcohol.

During cross-examination, Dixon’s counsel asked H.D. if she was aware that the legal limit of intoxication in Montana was .10. The prosecutor objected to the question on the grounds of relevance. The District Court sustained the objection and stated that the evidence about H.D.’s intoxicated condition was relevant, but the statutory inference of .10 was irrelevant.

Dixon argues that the court improperly limited his cross-examination of H.D. He contends that the question of whether H.D. knew the legal limit of intoxication was relevant because: 1) the State “opened the door” by asking about her knowledge of the law — the false I.D. question; and 2) the testimony was proper impeachment testimony since she testified to the amount of alcohol she had consumed.

Section 61-8-401(4), MCA, states:

Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person driving or in actual physical control of a vehicle while under the influence of alcohol, the concentration of alcohol in the person at the time alleged, as shown by analysis of the person’s blood, urine, or breath, shall give rise to the following inferences:
(c) If there was at that time an alcohol concentration of 0.10 or more, it may be inferred that the person was under the influence of alcohol. The inference is rebuttable.

The statutory inference of .10 is only relevant in “civil or criminal actions ... [in which a] person [is] driving or [is] in actual physical control of a vehicle while under the influence of alcohol.” Section 61-8-401(4)(c), MCA.

Here, there was no evidence to show that H.D. was driving or in actual physical control of a car that night. Thus, her knowledge of the statute was irrelevant and the State’s objection was properly sustained.

Since H.D. testified to the amount of alcohol she consumed, the court allowed evidence of H.D.’s intoxicated condition. In fact, Dixon testified that H.D. was tipsy, but she was not drunk. We hold that the District Court correctly acknowledged that evidence of H.D.’s intoxicated condition was relevant as impeachment testimony, but her knowledge of the statutory inference of .10 was irrelevant.

II

Did the District Court err by denying Dixon’s motions for a mistrial based on alleged prosecutorial misconduct?

Dixon alleges that the prosecutor acted so inappropriately that his misconduct was sufficiently prejudicial to warrant a mistrial. First, he argues that, in the presence of the jury, the prosecutor improperly attacked defense counsel while conducting voir dire of the alternate jurors. The prosecutor stated:

[Defense counsel] asked you this question, would you like to be seated in... [the defendant’s] chair and have someone of your mind [on the jury]? I don’t think anyone can answer that. I think that’s a very, very, very wrong question to ask a juror. Put yourself in place of the defendant. I will ask you if you will be fair and keep in mind that this is an open court where we try to have honesty because they’re going to decide. Would you buy that?

(Emphasis added.) The prosecutor also stated:

And do you understand that no witness has to be corroborated? [Defense counsel] asked a question of one of the jurors, would you look for other evidence to determine if it were blue paint or red paint? What his question was getting at is this. I think you could not resolve the conflict unless you had other corroborating evidence, some other evidence to tell whether it was blue paint or red paint, you understand? And I think you’ll be instructed that you don’t need corroborating evidence to believe one witness over another. It’s nice if you have it, but you don’t need it. How many witnesses do you believe you will find to an act of forcible intercourse?

After the second question, Defense counsel approached the bench and moved for a mistrial. The court denied the motion.

Additionally, Dixon argues that the prosecutor violated an order in limine prohibiting references to H.D. during trial as a “victim.” He alleges that the prosecutor acted improperly when he referred to H.D. as a “female rape victim.” (Emphasis added.)

When the District Court granted the motion in limine to exclude any references to H.D. as the “victim,” it stated:

I guess I worry about if I grant a motion in limine and the word victim slips out, then where are we?
DEFENSE COUNSEL: Well, I don’t think that would be prejudicial err [or],
THE COURT: Okay. Basically you’re agreeing to that; so I’ll grant that motion in limine and recognize we always could be faced with a problem if it happens.

Later, in trial, the prosecutor objected to a question posed to a detective about a knife found at the trailer. H.D. had earlier testified that Dixon used a foot long knife with a wooden handle to assault her. But, the only knife found at the trailer was a green lock blade knife. Defense counsel asked the detective:

Do you think under any lighting circumstances you would confuse [the green lock blade knife] for a foot long knife with a wooden handle?

PROSECUTOR: Objection. I think if he were a female rape victim — After this comment, defense counsel moved for a mistrial; the court, however, denied the motion.

“A mistrial is appropriate only upon a demonstration of manifest necessity coupled with the denial of a fair and impartial trial.” State v. Benton (1992), 251 Mont. 401, 404, 825 P.2d 565, 567. We will uphold a district “court’s denial of a motion for mistrial... [if there is not] clear and convincing proof of error.” Id. at 567-68.

Here, Dixon has failed to establish error. Although improper, the prosecutor’s comments were insignificant when viewed in context with the entire record. We hold that the prosecutor’s comments did not prejudice Dixon and he was not denied a fair and impartial trial.

In fact, the District Court ensured that Dixon’s right to a fair trial was preserved. The court instructed the jury that the comments of counsel were not evidence. The court also instructed the jury to consider only the evidence when deciding Dixon’s fate. Thus, the jury was instructed not to use the prosecutor’s comments to decide the outcome of the case. After a careful review of the record, we conclude the District Court properly denied Dixon’s motions for a mistrial.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON and TRIEWEILER concur.


author: JUSTICE WEBER

text:
    CAROL ANN WILLOUGHBY, Petitioner and Appellant, v. ROLAND B. LOOMIS, Respondent and Respondent.
    No. 93-338.
    Submitted on Briefs December 9, 1993.
    Decided February 24, 1994.
    51 St.Rep. 138.
    264 Mont. 44.
    869 P.2d 271.

      For Petitioner and Appellant: Thomas R. Scott, Beaverhead County Attorney, Dillon, Joseph P. Mazurek, Attorney General, Helena; April Armstrong, Child Support Enforcement Division, Great Falls.
    For Respondent and Respondent: Vincent J. Kozakiewicz, Kozakiewicz Law Office, Dillon.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from an order of the Fifth Judicial District, Beaverhead County, relating to the enforcement of child support payments under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA). We reverse and remand.

We consider the following issues on appeal:

I. Did the District Court err in determining that Loomis should pay $10,000 in child support instead of the $13,000 actually owed?

II. Did the District Court err by ordering the child support paid into a trust for the educational purposes of the child?

III. Did the District Court err when it discharged the State of Montana as a party to this action under the applicable version of RURESA?

IV. Did the District Court err in determining that the child had reached the age of majority and was now the real party in interest?

Carol Ann Willoughby (Willoughby) and Roland B. Loomis (Loomis) were divorced in 1978. One daughter was born to the marriage in October of 1974. The divorce decree, issued from Jefferson County, ordered Loomis to pay $125 per month in child support. Although Loomis provided his daughter with sums of money and clothing from 1978 until 1987, he did not pay any support. He provided no defenses to this failure. Nor did Loomis introduce evidence showing the extent of the money he did give to his daughter.

On May 29, 1987, the Jefferson County Attorney initiated this RURESA action in the Fifth Judicial District Court, Jefferson County in an attempt to collect back child support for the nine years following the couple’s divorce. Willoughby alleged that Loomis owed $13,000 in back child support. The RURESA petition for support enforcement also asked for current child support payments in the judicially set amount of $125 per month.

The action was certified to the Fifth Judicial District Court, Beaverhead County, where Loomis resides and the Beaverhead County Attorney continued the action on Willoughby’s behalf. On June 8, 1987, the District Court in Beaverhead County ordered Loomis to appear and show cause why he should not be ordered to pay the current and delinquent support alleged in the RURESA petition.

On July 2,1987, the court issued an order based on the testimony at the show cause hearing stating that Loomis was obligated to pay the $125 per month support. The order denied Willoughby’s claim for delinquent child support and indicated that an evidentiary hearing was needed regarding this delinquency. No notice of entry of judgment was filed.

The Beaverhead County Attorney sought a further hearing which was held in September of 1987. This hearing at which both Willoughby and Loomis testified was followed by an October 16, 1987 order in which the court determined that Loomis owed back child support. Within this document, the court outlined provisions for a trust to be established in the name of the daughter for $10,000 in lieu of payment of the total amount of back child support. The trust was to contain $10,000 by October of 1992 and was then to be given to the child who would then have reached the age of majority.

In March of 1988, the Beaverhead County Attorney sought to have Loomis held in contempt for not establishing the trust. At an April hearing, Loomis testified that he had failed to establish the trust under the court guidelines. He had opened the trust with a $40 deposit, but later drew that out. Throughout this time, Loomis continued to make his regular current payments of $125 per month.

In April of 1988, the court denied the motion for contempt and refused to amend the judgment. The court determined that failure to establish the trust payments according to the court’s order was a “harmless dilatory act.”

On January 21, 1993, the Beaverhead County Attorney filed a Motion and Order to Show Cause, again requesting that Loomis be held in contempt for complete failure to comply with the court’s orders. The petition alleged that the trust contained no money on October 20, 1992, the time set for the $10,000 to have accumulated in the trust. During a hearing held on February 12, 1993, Loomis admitted that he had not complied with the court’s earlier order. The court stated at that time that the judgment was intended to be a stay of execution which Loomis could discharge by making deposits into the trust account.

The ensuing March 18, 1993 order stated that Loomis had failed to pay $10,000 into the trust account and that the child was now an adult who could execute on the judgment. The court dismissed the State as a party and determined that a contempt order was not appropriate.

The Beaverhead County Attorney filed a Motion for Reconsideration of Findings and Order, dated April 19,1993. The court issued its final order on May 1993 denying the motion for reconsideration and prohibiting the State of Montana from any further action in this case. The State of Montana has filed an appeal from the May 3,1993 order and from the earlier orders in this case.

I

Did the District Court err in determining that Loomis should pay $10,000 in child support instead of the $13,000 actually owed?

The State argues that the District Court had no foundation for setting the amount of child support arrearage at $10,000. The State contends that Loomis never denied that he owed the $13,000 in back child support and the court never indicated why it reduced the $13,000 total by $3,000. The State contends that retroactive modification of support is not permitted by Montana law.

Loomis argues that Willoughby’s appeal in this action is untimely because the original order setting the $10,000 amount is dated October of 1987. Further, Loomis cites several maxims of jurisprudence to fortify his contention that Willoughby’s failure to file a notice of entry of judgment concerning that order prevents her from filing an appeal now.

The Attorney General filed Willoughby’s appeal on June 8, 1993. According to Rule 5, M.R.App.P., when the State is a party to a lawsuit, appeal must be taken within 60 days from the order appealed from or 60 days from the notice of entry of judgment. The time for appeal does not begin to rim until the notice of entry of judgment has been entered. El-Ce Storms Trust v. Svetahor (1986), 223 Mont. 113, 724 P.2d 704. The record contains no notice of entry of judgment. We conclude that the appeal has been timely filed in this case because the final order was dated May 3, 1993, and the record contains no notice of entry of judgment.

The pivotal question, however, is whether the District Court had jurisdiction to order Loomis to pay $10,000 instead of the $13,000 he owed in back child support. This present action was filed pursuant to §§ 40-5-101, MCA(1987), et seq., which is the Montana Revised Uniform Reciprocal Enforcement of Support Act (RURESA). Willoughby filed the action in 1987, nine years after the original divorce had been granted with an attendant child support provision for $125 per month. No payments of child support were made prior to the date of filing this action.

This Court has determined that each child support payment “becomes a judgment debt similar to any other judgment for money.” In re Marriage of Sabo (1986), 224 Mont. 252, 254, 730 P.2d 1112, 1113; In re Marriage of Hooper & Crittendon (1991), 247 Mont. 322, 327, 806 P.2d 541, 544. As such, a party has ten years to execute on a judgment. Section 27-2-201(1), MCA. We have specifically determined that this ten-year statute of limitations applies to actions by one parent against another for child support arrearage. Hooper & Crittendon, 247 Mont. at 327, 806 P.2d at 544.

The District Court quoted Blakeslee v. Horton (1986), 222 Mont. 351, 722 P.2d 1148, for the proposition that equity prevents the mother from seeking payment of support after nine years. While the Blakeslee Court applied equitable principles for a 14-year delay in seeking support arrearage, the case was decided several months before Sabo which determined that each individual support payment is a money judgment and, therefore, subject to the ten-year statute of limitations for money judgments. Section 27-2-201(1), MCA. However, even under the Sabo interpretation, Blakeslee would have been decided similarly because the ten-year limit had been exceeded. We conclude that the District Court erroneously relied on Blakeslee.

The District Court also modified the total amount of child support arrearage owed to the custodial parent by reducing the total $3,000. The controlling statute is § 40-4-208(1), MCA, which we have interpreted to mean that courts can only modify a child support judgment prospectively. Hooper & Crittendon, 247 Mont. at 324, 806 P.2d at 543. The District Court changed the arrearage total by merely stating that $10,000 was a “reasonable” amount.

While it is true that petitioner asked for a “reasonable amount” of the money owed to her, such a request does not take precedence over established law. That law specifically prohibits courts from retroactively modifying child support by any amount.

Loomis requests application of equity. We have utilized principles of equity previously to carve an exception to § 40-4-208, MCA’s prohibition against retroactive modification by applying equitable parameters in extraordinary circumstances. Such extraordinary circumstances involve a situation in which both parents agree to a modification in child support and the agreement is observed by both parents over a period of years. Hooper & Crittendon, 247 Mont. at 324, 806 P.2d at 543.

The record before us indicates that Willoughby and Loomis have not engaged in any such agreement. Of greater importance is Loomis’ admission that he owes the full amount of $13,000. Because the parents have not judicially modified the child support nor mutually agreed and acted upon any changes to the original order, the District Court, under the statutes in effect at the time of this action, cannot sua sponte retroactively modify an earlier support order from another jurisdiction by issuing a contemporary RURESA order. We note that the 1993 Legislature has now changed the procedure by which the courts of one state can modify support orders of another. Section 40-5-194, MCA(1993).

We conclude that the District Court must enforce the original amount owed to Willoughby, from date of the original support order in 1978 until the filing of the RURESA action in 1987. We therefore, hold that the District Court erred in determining that Loomis should pay $10,000 in child support instead of the $13,000 actually owed. Because the District Court acted beyond its jurisdiction, we reverse and remand.

II

Did the District Court err by ordering the child support paid into a trust for the educational purposes of the child?

Neither party in this action sought a trust. The District Court on its own established a trust for the minor child to be paid to the child at the age of majority. On appeal, Willoughby argues that in creating the trust, the court modified the original support order inappropriately. Loomis argues that the decision to create a trust occurred six years ago and that this Court cannot now change that order.

Because an appeal was taken within the allotted statutory time for filing of an appeal, Loomis’s argument is incorrect. In addition, we have already stated that the District Court cannot modify support orders retroactively, except in certain situations. Creating the trust was a modification not sought by the parties nor ordered by the court in the original divorce decree.

The court designated the trust to be used for the child’s education. Support is a sum of money paid to the custodial parent to be used for the child; the manner in which child support is to be used is left to the discretion of the custodial parent. Williams v. Budke (1980), 186 Mont. 71, 75, 606 P.2d 515, 517. The court erred in creating a trust for the child because neither party had asked that such a trust be created.

Loomis argues that Williams is not applicable because it is not a RURESAcase. Williams was decided pursuant to § 40-4-208(1), MCA, which has been a part of our law in this state since 1975. Despite the 1993 modifications to the Uniform Act, this statute has remained intact to this day. The statute states in pertinent part:

"... decree may be modified by a court as to maintenance or support only as to installments accruing subsequent to actual notice to the parties of the motion for modification.” (Emphasis added — “to actual notice to the parties” has been added since 1975 and remains in the 1993 version).

We conclude that whether in Williams or in the present case, the law remains the same: a court cannot retroactively change a prior support order — whether by instituting deferred payments of the arrearage as in Williams or by setting the manner in which amount of arrearage owed can be used such as in this case of establishing a trust for educational purposes.

We hold that the court erred in creating a trust for the educational purposes of the child.

III

Did the District Court err when it discharged the State of Montana as a party to this action under the applicable version of RURESA?

In its March 18,1993 order, the District Court dismissed the State of Montana from the action and warned that neither Willoughby nor her daughter would be permitted to involve the State in future actions. The court gave no justification for this dismissal. The State argues that the court was without the jurisdiction to dismiss it. The State contends that the law clearly mandates that it is precisely the county attorney under the supervision of the Attorney General who must prosecute this case.

Loomis argues that the statute provides that the county attorney (prosecuting attorney) can only prosecute the case when asked to do so by the court or by certain public organizations. According to Loomis, Willoughby herself sought help from the county attorney and cannot, therefore, benefit from the request as she was without legal right to make the request.

Statutes may not be interpreted to defeat their intent or purpose; the object sought to be achieved by the legislature is our prime consideration in interpreting them. Montana Talc Co. v. Cyprus Mines Corp. (1987), 229 Mont. 491, 748 P.2d 444. In order to determine the intent of the legislature, we must read legislation as a whole. State v. Magnuson (1984), 210 Mont. 401, 682 P.2d 1365. Further, the uniform act itself states that the Act should be construed so as to effectuate the Act’s general purpose. 9B U.L.A. § 550, 1968 RURESA §41.

RURESA has now been preserved in some form by all fifty states. J. Gorham, Stemming the Modification of Child-Support Orders by Responding Courts: A Proposal to Amend RURESA’s Antisupersession Clause, 24 University of Michigan Journal of Law Reform 405 (1991). The intent of the original act remains the same throughout the country. The purpose behind uniform support enforcement is to prevent non-custodial parents from escaping their financial responsibilities by moving to another jurisdiction. Until last year in Montana, “another jurisdiction” included another county. Section 40-5-134, MCA(1987), repealed in 1993; T. Christie, 50 Montana Law Review, Child Support Enforcement in Montana, 165 (1989). The purpose of RURESA in Montana has been to improve and extend reciprocal support enforcement legislation, between jurisdictions. Section 40-5-102, MCA(1987).

In order to improve prosecution across state lines, as well as intra-state county lines, the 1987 version of RURESA called for the use of public officials as prosecutors. The term “prosecuting attorney” is used throughout the 1987 version of RURESA and is defined as “the public official in the appropriate place who has the duty to enforce criminal laws relating to the failure to provide for the support of any person.” Section 40-5-103(8), MCA(1987). This definition has been maintained by the new legislature in § 40-5-103(15), MCAG993).

Inherent in the use of public officials to prosecute these cases is the understanding that a custodial parent many times cannot enforce support orders if they must hire private counsel to prosecute in another jurisdiction, nor would many parents have money themselves to travel to other jurisdictions repeatedly. L. Hughes, Interstate Enforcement of Support Obligations Through Long Arm Statutes and URESA, 18 Journal of Family Law 537 (1980).

Loomis argues to us that Willoughby cannot herself approach the county attorney and ask him to prosecute for her. Section 40-5-139 (1987), MCA, stated:

Official to represent obligee. (1) If this state is acting either as a rendering or a registering state, the prosecuting attorney, upon the request of the court, a state department of social and rehabilitation services, a state department of family services, a county commissioner, or other local welfare official, shall represent the obligee in proceeding under this part. (Emphasis added.)

Section 40-5-139, MCA(1987), repealed in 1993. This section also applied to counties in Montana pursuant to § 40-5-134, MCA.

At Willoughby’s request the Jefferson County Attorney here petitioned the District Court of Jefferson County to certify the action to Beaverhead County where the Beaverhead County Attorney then continued representation of Willoughby, obligee under the statute. The foregoing statute does not list the obligee among the persons named as entitled to request the services of the prosecuting attorney. As a result there is no statutory obligation on the part of the county attorney to act when requested by obligee Willoughby. As a result, the choice to represent Willoughby rested with the prosecuting attorney. Neither county attorney refused to act and proceeded with the representation of Willoughby as obligee. We conclude that the initiation of the request by the obligee did not controvert the act in such a manner as to prohibit the prosecuting attorney from acting. We conclude there was no statutory violation when the county attorney as prosecuting attorney represented the obligee under the act.

In 1987 and through 1992, RURESA called for State participation in these suits through the office of the prosecuting (county) attorney. The 1993 Legislature has repealed § 40-5-135 and 139, MCA, thus removing from the State the wide discretion that it had to act in these cases. The distinctions that we make in the present case are no longer the law of Montana. Future cases must await specific interpretation of the new modifications to RURESA. We hold that the District Court erred in discharging the State of Montana as a party to this action under the applicable version of RURESA.

IV

Did the District Court err in determining that the child had reached the age of majority and was now the real party in interest?

The District Court determined that the action for child support no longer existed once the court handed down a judgment. The court stated that the doctrine of “merger” acted to change the character of the action itself from one of child support to one of action on a judgment. The court indicated that it was the child who had now reached the age of majority who had the power to obtain the judgment.

Willoughby argues on appeal that the aforementioned court order is contrary to the purpose of RURESA which is to extend the custodial parent’s remedies, not to terminate them. Loomis argues that the court never held that the child was the real party in interest.

It is clear from the District Court’s order of March 1993, that it considered the child the real party in interest:

The child in question is now an adult. As the beneficiary of the judgment, she can enforce it in her own right. ... The court wonders if the mother has any standing to enforce the judgment in the absence of a consent and authorization by the now adult beneficiary.

The court erroneously mischaracterizes what has happened.

The 1987 version of RURESA clearly gave the Attorney General jurisdiction to appeal to this Court any support order that the State believed to have been made erroneously or that contains a question of law. Section 40-5-135, MCA(1987). Here, the county attorney filed the appeal on behalf of the Attorney General. It is obvious from the briefing in this case that the Assistant to the Attorney General believed that the actions engaged in by the District Court “warranted an appeal in the public interest.” Considering that we have reversed on all issues, such an evaluation is correct.

This action is, therefore, an appropriate appeal of a district court RURESA order pursuant to the 1987 version of RURESA. As such it is an appeal from a child support order. The District Court completely mischaracterizes the action by quoting a leading treatise on judgments:

a valid and final personal judgment is conclusive between the parties except on appeal — to the following extent: (1) If the judgment is in favor of the Plaintiff, the claim is extinguished and merged in the judgment, and a new claim may arise on the judgment. (Emphasis added.)

This does not mean that the State cannot file an appeal. The 1987 Legislature specifically and clearly gave the State of Montana jurisdiction to appeal any district court support order under RURESA. Section 40-5-135, MCA.

The aforementioned passage from the Restatement of Judgments cannot be interpreted to indicate that the State cannot appeal. If anything it speaks to the plaintiff’s continuing ability to re-prosecute a legal issue which has already been settled by a court. Furthermore, the passage does not speak at all to the situation before us — which is one in which the Attorney General, not the successful plaintiff, has chosen to appeal a RURESA order of the District Court.

We have previously stated in this opinion that support is to be paid to the custodial parent for the purpose of aiding the child; but we will not tell the custodial parent how to spend the money that has been awarded. Williams, 186 Mont. at 75, 606 P.2d at 517. The money used by Willoughby to care for her minor child, came exclusively from her own sources. The court ordered Loomis to provide support at a sum certain each month and he did not comply with the order. But it is not within the court’s discretion to bypass the custodial parent. We have previously stated that where the father has been obligated by divorce decree to pay support to the mother, the father cannot discharge his duty by giving the money to the child directly. Oregon ex rel. Worden v. Drinkwalter (1985), 216 Mont. 9, 700 P.2d 150.

We conclude that the action before us is an appropriate appeal filed by the Attorney General for the State of Montana under an earlier version of RURESA and that the appeal concerns an erroneous support order entered by the District Court and that the appeal concerns matters in the public interest. We also conclude that Willoughby shall receive the arrearage. Therefore, we hold that the District Court erred in determining that the child had reached the age of majority and was now the real party in interest.

Reversed and remanded for further proceedings consistent with this opinion.

JUSTICES GRAY, HUNT, NELSON and TRIEWEILER concur.


author: JUSTICE HUNT JUSTICE GRAY

text:
    NANCY C. TOKUMOTO, d/b/a Kadena’s Gourmet Take-Away, Petitioner and Appellant, v. DEPARTMENT OF REVENUE OF THE STATE OF MONTANA and GREENLEAF RESTAURANT AND HOTELS CORPORATION, d/b/a Greenleaf Cafe and Delicatessen, Respondents and Respondents.
    No. 93-340.
    Submitted on Briefs February 3, 1994.
    Decided February 24, 1994.
    51 St.Rep. 144.
    264 Mont. 56.
    869 P.2d 782.

      For Petitioner and Appellant: Robert J. Sullivan, Boone, Karlberg & Haddon, Missoula.
    For Respondents: David L. Nielson, Tax Counsel, Office of Legal Affairs, Department of Revenue, Helena; and Milton Datsopoulos,. Datsopoulos, MacDonald & Lind, Missoula (Greenleaf).
   JUSTICE HUNT

delivered the Opinion of the Court.

Petitioner/Appellant, Nancy C. Tokumoto, d/b/aKadena’s Gourmet Take-Away (Tokumoto), appeals from an order of the Fourth Judicial District Court, Missoula County, affirming the decision of the Department of Revenue which awarded a beer/wine license in the City of Missoula to respondent, Greenleaf Restaurant (Greenleaf).

We affirm.

The dispositive issue is whether the District Court erred when it affirmed the Department of Revenue’s findings that Greenleaf was qualified to receive an on-premises consumption beer/wine license.

In early 1991, the City of Missoula annexed adjoining property increasing the city’s population. The Department of Revenue (DOR) found that this increase justified issuance of four new beer/wine licenses to Missoula businesses, pursuant to §§ 16-4-203 and -502, MCA. Twenty-one Missoula businesses applied for the licenses. DOR held a hearing on October 22, 1991, for purposes of considering the applications, pursuant to § 16-4-207(3), MCA. Seventeen applicants appeared, including Greenleaf’s sole proprietor and stockholder, Mr. Merhi, who testified that he was not a United States citizen. Many other applicants objected to his application based on this admission because, they argued, residency and state voter registration requirements were conditions precedent to DOR’s consideration of a licensee application.

On December 24,1991, the hearing officer sent notice of a proposed decision to all interested parties which stated that Greenleaf was to be one of the successful applicants. The hearing examiner found that the citizenship requirement under § 16-4-40 l(2)(a)(iii), MCA, could be satisfied at any time prior to DOR’s order for the issuance of the new licenses, and that Mr. Merhi’s citizenship was not a condition precedent for consideration of qualification or fitness for a license. In addition, the hearing examiner found that Tokumoto would be an alternate recipient in the event any one of the four successful applicants did not receive a license.

In January 1992, Tokumoto submitted written objections to the hearing examiner’s proposed decision. On July 24, 1992, DOR adopted the proposed findings of the hearing examiner that awarded Greenleaf a license.

Tokumoto sought judicial review, pursuant to § 16-4-411, MCA, in the Fourth Judicial District, Missoula County. She contested DOR’s acceptance of Greenleaf’s application on the basis that at the time of Greenleaf’s application, § 16-4-405(3)(c), MCA, required Mr. Merhi to be a state registered voter, which first required him to be a United States citizen. DOR contended that § 16-4-401(2), MCA, requires the applicant to be a registered voter only by the time DOR orders the issuance of a license, and that Mr. Merhi could meet that requirement. Further, DOR expressed that it routinely grants liquor licenses for facilities not yet built, allowing businesses to bring premises up to a standard of suitability prior to issuing a license. In a similar manner, DOR argued that eligibility requirements for beer/wine licensee applicants could be cured prior to issuance of the license.

The District Court, giving deference to DOR’s interpretation of its own regulations, found that DOR correctly interpreted §§ 16-4-401 and -405, MCA, when it issued its approval of the license to Greenleaf. On April 19, 1993, Tokumoto filed a motion requesting the District Court to reconsider its order of April 9,1993, which the court denied. On June 8, 1993, Tokumoto filed this appeal.

Did the District Court err when it affirmed the Department of Revenue’s findings that Greenleaf was qualified to receive an on-premises consumption beer/wine license?

The administration of liquor licenses is governed by the Montana Alcoholic Beverage Code, which includes licensing criteria set forth in §§ 16-4-401 through -405, MCA. Section 16-4-401(2)(a)(iii), MCA, provides:

In the case of a license that permits on-premises consumption, the department must find in every case in which it makes an order for the issuance of a new license or for the approval of the transfer of a license that:
(iii) the applicant is a resident of the state and is qualified to vote in a state election .... [Emphasis added].

Section 16-4-401(2)(b)(i), MCA, requires:

(b) in the case of a corporate applicant:
(i) the owners of at least 51% of the outstanding stock meet the requirements of subsection (2)(a)(iii) ....

Section 16-4-405(3)(c), MCA, provides:

(3) A license under this code may not be issued if the department finds from the evidence at the hearing held pursuant to 16-4-207(3) that:
(c) the applicant or the premises proposed for licensing fail to meet the eligibility or suitability criteria established by this code .... [Emphasis added].

We have held that the standard for reviewing an administrative agency’s conclusions of law is whether the agency’s interpretation of law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

Tokumoto claims that DOR’s award of the beer/wine license to Greenleaf resulted in substantial prejudice to her. She emphasizes that the parties do not dispute that at the time of application, at the hearing, and at the issuance of the preliminary findings and proposed order, Greenleaf’s owner, Mr. Merhi, was not a United States citizen.

Tokumoto argues that § 16-4-401(2)(a)(iii), MCA, clearly sets forth the criteria that must be met in every case in which DOR makes an order, but that the statute is silent as to when the evidence of qualifications must be presented. Tokumoto asserts that DOR’s interpretation of the statute, that an applicant could qualify any time before DOR makes a final order for the issuance of a new license, is incorrect because it requires insertion of language not in the statute. Tokumoto contends that, on the contrary, the plain language of § 16-4-405(3)(c), MCA, clearly and unambiguously dictates that an applicant be eligible as determined by evidence produced at the hearing.

The hearing examiner found:

It has been long-standing, past practice of the Department to permit applicants to cure defects in an application prior to actual issuance of a license, the specific and unequivocal term used in the statute. Therefore, citizenship is not used as a criteria in looking to the applicants before this hearing.

DOR asserted that Tokumoto’s interpretation of the statutes employed too narrow a reading. It reasoned:

Just as the Department allows the premises to be brought to a standard of suitability after submission of the [liquor license] application, so should an [beer/wine licensee] applicant be permitted to complete attainable eligibility criteria after submission of the application.

The District Court gave deference to DOR’s interpretation of its own regulations. The court found that from the plain language of §§ 16-4-401 and -405, MCA, “DOR cannot issue a license if the evidence at the hearing reveals that the applicant failed to meet the eligibility criteria.... [and] DOR cannot issue a license if the applicant is not a resident of the state ....” The court was persuaded by DOR’s long-standing past practice to permit applicants to cure defects in an application prior to actual issuance of a license.

We have held that “[t]his court shows great deference to an interpretation given a statute by the agency charged with its administration.” Norfolk Holdings, Inc. v. Montana Dept. of Revenue (1991), 249 Mont. 40, 44, 813 P.2d 460, 462 (citations omitted). We agree with DOR and the District Court.

Although Mr. Merhi was not a citizen at the time of the hearing, the record shows that he was taking affirmative steps to obtain United States citizenship to become eligible by the time of issuance of the license. DOR historically has granted liquor licenses for premises that are not even constructed on the condition that the premises would be constructed according to the plans presented it and further contingent upon the premises meeting applicable building codes, sanitary inspections, and health codes. Not to do so would mean that an applicant who did not have the premises fully ready for use could never be granted a license, even if he acted in reliance of the possibility of receiving a license. In the past, DOR has allowed beer/wine license applicants to cure eligibility requirement defects for the same reason. Mr. Merhi’s gamble, that he may not have become a United States citizen by the time DOR ordered issuance of the four licenses, did not substantially prejudice Tokumoto, but affected him alone. If he had failed to obtain citizenship in time, Tokumoto apparently would have been the beer/wine license recipient.

We affirm the District Court.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, NELSON, WEBER and TRIEWEILER concur.

JUSTICE GRAY

dissenting.

I respectfully dissent from the opinion of the Court.

It is not disputed that the hearing held in this matter was required by § 16-4-207(3), MCA, because written protests had been filed. It also is not disputed that, at the time of the hearing, Greenleaf’s owner did not meet the eligibility criteria contained in § 16-4-401(2)(a)(iii), MCA.

These undisputed facts lead inexorably to § 16-4-405, MCA. That statute prohibits the issuance of a retail alcoholic beverage license if the Department finds from the evidence at the hearing that the applicant fails to meet the eligibility or suitability criteria provided by statute. There is no mystery here; the statutory language is plain, clear and unambiguous. If evidence produced at the hearing establishes that an applicant does not meet the eligibility criteria, the Department must so find. Having so found, the license cannot be issued to the applicant.

The hearing examiner, the District Court and this Court rely on the Department’s past practices in giving “deference” to the Department’s interpretation of the statutes at issue here. Such reliance is totally unwarranted where, as here, the past practices are clearly at odds with the plain statutory language.

Our standard of review is whether the agency and the District Court correctly interpreted the law. It is clear that they did not. Agencies are not free to act in a manner which contravenes laws enacted by the legislature; nor are they entitled to deference in their interpretation of the law when that interpretation is based on actions and practices which do not comply with the law.

The fact is that the statute at issue here does not say what the District Court said it says. Section 16-4-405, MCA, does not say that the Department cannot issue a license if the applicant fails to meet the statutory eligibility criteria by the time the license is issued. Section 16-4-405, MCA, states clearly that a license cannot be issued if the Department finds, from the evidence at the hearing, that the applicant does not meet the criteria. The Court’s opinion ignores the clear statutory language. In so doing, the Court violates its most fundamental obligation with regard to statutory interpretation: to declare what a statute says, without omitting what is contained therein. Section 1-2-101, MCA.

Moreover, the portions of the Court’s decision relating to the Department’s practices with regard to premises suitability and prejudice to Tokumoto are entirely irrelevant. The fact that the Department has acted contrary to the statute with regard to both premises suitability and applicant eligibility hardly bolsters the legal propriety of its actions. Nor does any statute at issue here require Tokumoto to show prejudice.

I would reverse the District Court.


text:
    RICHARD DeJANA, Individually and on behalf of OLESON and DeJANA LAW FIRM, a partnership, Plaintiff/Appellant, v. H.JAMES OLESON and E.EUGENE ATHERTON, Defendants/Respondents.
    No. 93-447.
    Submitted on Briefs January 17, 1994.
    Decided February 24, 1994.
    51 St.Rep. 147.
    264 Mont. 62.
    869 P.2d 785.

      For Plaintiff/Appellant: Richard DeJana, DeJana Law Firm, Kalispell.
    For Defendants/Respondents: H. James Oleson, Oleson Law Firm, Kalispell.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a dismissal by the Eleventh Judicial District Court, Flathead County, of an action involving the parties’ law firm. We reverse.

The appellant has raised several questions for review. We consider only one as determinative of the action before us:

Did the District Court err by dismissing this case without notice to the parties after five years of inaction on the case?

Appellant and respondent were partners in a Kalispell law firm from July of 1984 until August of 1985. During August, the partnership dissolved with each partner agreeing to account for respective unbilled billable hours and hours on contingency fee cases.

A complaint was filed by DeJana on December 24, 1987, alleging various failures on the part of Oleson to account for unbilled billable and contingency hours, failure to account for funds that had been diverted by Oleson, and alleging such things as theft, conversion of funds, and breach of the covenant of good faith and fair dealing.

During May of 1988, DeJana served various Requests for Admission and Production. Following these requests, Oleson sought a protective order from the court and DeJana sought an order to compel arbitration. These matters were heard by the court which issued an omnibus order on June 16, 1988. The order dismissed the action as to Atherton which has not been appealed. The order granted Oleson’s motion for a protective order and further ordered that both parties were to cease discovery. DeJana’s request for appointment of an arbitrator was denied as was DeJana’s demand for a jury trial because the court considered this an action in equity. The court also granted the parties thirty days to reach a settlement.

DeJana objected to the ruling but the court did not rule on the objection. Nothing further was done in this proceeding and nothing was filed until, without notice, the court dismissed the case with prejudice on July 13, 1993, due to lack of any action for five years.

Did the District Court err by dismissing this case without notice to the parties after five years of inaction on the case?

DeJana argues that the court abused its discretion by dismissing the action. He points out that the District Court ordered that both DeJana and Oleson cease further discovery efforts in this cause and concluded that the case is an accounting which the court would resolve on equitable principles. Finally, the court in its June 16,1988 order, provided that the parties were granted thirty days to effect a compromise and “[i]n the absence of settlement, the Court will schedule a trial before the Court, sitting without a jury.” Oleson argues that no requirement exists for warning prior to dismissal. We conclude that a warning was appropriate under the facts of this case.

It is true that a district court is accorded broad discretion in determining whether a cause of action should be dismissed for failure to prosecute. Shackleton v. Neil (1983), 207 Mont. 96, 672 P.2d 1112. However, because dismissal for failure to prosecute is a harsh remedy, the court does not have unlimited discretion to grant an involuntary dismissal. Becky v. Norwest Bank (1990), 245 Mont. 1, 798 P.2d 1011. Courts exist primarily to afford a forum to settle litigable matters between disputing parties. Brymerski v. City of Great Falls (1981), 195 Mont. 428, 636 P.2d 846. Therefore, the district courts must balance the concerns of judicial efficiency embodied in Rule 41(b), M.R.Civ.P., against a party’s right to meaningful access to the judicial system. Timber Tracts, Inc. v. Fergus Elec. Co-op, Inc. (1988), 231 Mont. 40, 753 P.2d 854.

Both parties in the present case cite Becky as precedent for the factors that we must consider when determining whether a court abused its discretion in dismissing an action for failure to prosecute. Those factors are: (1) the plaintiff’s diligence in prosecuting his or her claims, (2) the prejudice to the defense caused by the plaintiff’s delay, (3) the availability of alternate sanctions; and (4) the existence of a warning to plaintiff that his or her case is in danger of dismissal. Becky, 245 Mont. at 8, 798 P.2d at 1015. Oleson argues that a warning is not mandatory. Becky emphasizes that the facts of each case control, stating:

There is no precise formula for determining when an action may properly be dismissed for failure to prosecute. Each case turns on its own particular set of circumstances, and lapse of time in and of itself is insufficient to justify dismissal.

Becky, 245 Mont. at 7, 798 P.2d at 1015. Here, the court gave no reason for its dismissal except for the time that had elapsed: “There being no action in this cause since August 16,1988, this case is by the Court hereby DISMISSED with prejudice.”

A review of the record indicates that no action existed because the court, in its omnibus order of June 16,1988, cut off all alternatives for the parties except for “compromise and settlement of the litigation.” The court stated that if the parties did not settle, it would set a trial date. DeJana objected to the court’s denial of his trial by jury and failure of the court to appoint an arbitrator. Oleson then moved the court for partial adjudication which the court granted on August 18, 1988. The last sentence of that order states:

This order is without prejudice to any right of the Plaintiff on any pending issue in this cause.

The District Court effectively eliminated further action by the two parties. Under all these circumstances we conclude that the warning was necessary on the part of the court prior to dismissal. We hold the District Court abused its discretion in dismissing the case.

Reversed and remanded for further proceedings consistent with this opinion.

JUSTICES HARRISON, GRAY, NELSON and TRIEWEILER concur.