text:
    H. WALTER ROSE and Richard H. Rose, Plaintiffs and Appellants, v. LARRY E. MYERS and Michael A. Schafer, Sheriff of Yellowstone County, Montana, Defendants and Respondents.
    No. 85-405.
    Submitted July 24, 1986.
    Decided Aug. 21, 1986.
    Rehearing Denied Sept. 23, 1986.
    724 P.2d 176.

      MR. JUSTICE HUNT concurred and filed separate opinion.
    Robert E. LaFountain argued, Billings, for plaintiffs and appellants.
    Mike Greely, Atty. Gen., Helena, Harold Hanser, Co. Atty., Charles A. Bradley argued, Deputy Co. Atty., Billings, for defendants and respondents.
    Larry Myers, pro se.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Appellants, H. Rose and R. Rose, brought an action in the Yellowstone County District Court seeking to declare a sheriff’s sale of appellants’ horses invalid as held under the agisters’ lien statutes, and attempting to nullify the certificate of sale. The District Court found that the sale was valid, that the appellants were not denied their due process by the manner of the notice and sale, and that the remaining horses be returned to appellants upon their posting a $30,000 bond pending resolution of the underlying contract dispute. From this order the Roses appeal.

We affirm the District Court in this case because the appellant had actual notice of the sale.

Appellants raise the following issues on appeal:

1. Whether the sale should have been declared invalid as unconstitutional for failure to provide for notice and an opportunity to be heard prior to deprivation of property?

2. Whether the District Court erred in holding that the notice provisions were complied with in this case?

3. Whether the court erred in failing to declare that the sale was void or voidable?

4. Whether the court erred in using faulty figures in taking judicial notice that the parties’ contract price was too low to include feeding, and in applying that decision to justify the court’s order?

This dispute arose from an oral contract entered into in April 1984. Myers agreed to care for the Roses’ horses at a cost of $12 per head per month. The parties dispute whether Myers was responsible for feeding the horses or merely pasturing them. On November 30,1984, Myers sent notice to the Roses that an agister’s lien sale would take place in December. Money was paid to Myers and the sale was not held. Over the course of the winter, Myers found it necessary to feed the horses at his own expense as the pasture would not support the horses in the winter. Myers contends the agreement was for pasturing only, while the Roses contend it was for the care and feeding of the horses.

On March 1, 1985, Myers again caused to be issued from the Yellowstone County Sheriff’s office, a notice of an agister’s lien sale scheduled for March 11, 1985. The notice was postmarked March 1, 1985, and notices were posted in Yellowstone County. The sale was held March 11, 1985. The Roses contend they did not receive the notice until March 12, 1985. Myers stated he informed the Roses of the sale by telephone on March 2, and 3, 1985.

At the sale, 55 of 129 horses were sold for $6,830 which was then applied by the sheriff to the outstanding bill. The Roses claim the horses’ value was far in excess of $6,830, but that none of the horses were sold as registered and most were sold by lots or in gross.

On March 20, 1985 the Roses filed their petition for declaratory relief, and to set aside the sale. Following a hearing before Judge Barz, the District Court held that the sale was valid and the Roses were not denied their due process. The Roses appeal that order.

Appellants’ horses were sold pursuant to the agisters’ lien statutes, Section 71-3-1201, MCA, et seq. Section 71-3-1201, MCA, states:

“(1) If there is an express or implied contract for keeping, feeding, herding, pasturing, or ranching stock, a ranchman, farmer, agister, herder, hotelkeeper, livery, or stablekeeper to whom any horses, mules, cattle, sheep, hogs, or other stock are entrusted has a lien upon such stock for the amount due for keeping, feeding, herding, pasturing, or ranching the stock and may retain possession thereof until the sum due is paid.”

Enforcement of the lien is found at Section 71-3-1203, MCA. That statute says:

“If payment for such work, labor, feed, or services or material furnished is not made within 30 days after the performance or furnishing of the same, the person entitled to a lien under the provisions of this section may enforce said lien in the following manner:
“(1) He shall deliver to the sheriff or a constable of the county in which the property is located a statement of the amount of his claim against said property, a description of the property, and the name of the owner thereof or of the person at whose request the work, labor, or services were performed or the materials furnished.
“(2) Upon receipt of such statement, the sheriff or constable shall proceed to advertise and sell at public auction so much of the property covered by said lien as will satisfy same.
“(3) Such sale shall be advertised, conducted, and held in the same manner as provided by law for the sale of mortgaged personal property by sheriffs. Such notice shall be given for not less than 5 or more than 10 days prior to the date of sale.
“(4) The proceeds of the sale shall be applied by the sheriff to the discharge of the lien and the cost of the proceedings in selling the property and enforcing the lien, and the remainder, if any, or such part as is required to discharge the claims, shall be turned over by the sheriff to the holders, in the order of their precedence, of the chattel mortgages or other lien claimants of record against said property, and the balance of the proceeds shall be turned over to the owner of the property.
“(5) However, before making seizure of any property under the provisions of this section, the sheriff may require an indemnity bond from the lienor in [sic] not to exceed double the amount of the claim against said property, said bond and the surety or sureties thereon to be approved by said sheriff.”

Our decision in this case is arrived at on other than constitutional grounds. We find it unnecessary to decide whether Section 71-3-1203, MCA, is constitutional and therefore do not consider appellants’ first issue.

The attention of the Montana Legislature is respectfully directed to the due process provisions of Article II, Section 17, of the Montana Constitution, the Fourteenth Amendment of the Constitution of the United States and their application to the notice provisions of Section 71-3-1203, MCA.

The agister’s lien statute was first enacted in 1895 and is an important part of our commercial law, serving as a practical matter both the interest of debtors and creditors. If in a future case this statute was found to be unconstitutional, it would invite chaos and confusion in this area of law.

Appellants’ second issue is whether the District Court erred in holding that the notice requirements were met in this case. Appellants argue that the notices of the sale were untimely and deficient, and that the District Court incorrectly interpreted the statutes in regard to notice.

The Roses claim the notice was untimely as they did not receive notice until one day after the sale. The District Court found that two notices were mailed to the Roses on March 1, 1985, 10 days before the sale. In addition, the Roses received notice in the form of two telephone calls from Myers on March 2, and 3, 1985. The District Court correctly concluded that the Roses received timely notice.

Appellants also claim the notices were deficient in that the notice failed to adequately describe the location of the sale or the property to be sold. The notice stated that the sale was to be held at “10:00 o’clock a.m. 3Vfe miles SW of Laurel.” The notice described the property for sale as “10 mix horse colts, 25 mix mares, 17 mix colts, 1 gray stud, 1 sorrel stud, 1 chestnut stud.”

The description of the horses is satisfactory. The notice described the horses by number, sex, and color. Appellants’ contention that the notice should have described what mix the horses were as well as any special breeding or other special characteristics of the horses is not correct. The notice description was sufficient to alert the public to the nature of the sale and the property to be sold. There is no need for the kind of detailed description advocated by the appellants.

Further, appellants failed to raise the issue of the adequacy of the sale location description during the trial below. Since appellants failed to raise the issue below, we will not address the question on appeal.

The Roses also argue that the District Court incorrectly interpreted the statutes in regard to notice. Section 71-3-1203(3), MCA, states:

“Such sale shall be advertised, conducted, and held in the same manner as provided by law for the sale of mortgaged personal property by sheriffs. Such notice shall be given for not less than 5 or more than 10 days prior to the date of sale.”

The District Court concluded that the notice “must be reasonably calculated to reach the owners of the livestock.” We agree with the District Court’s conclusion that the method of notice was reasonable, and that the Roses received notice of the sale.

Appellant’s third issue is whether the District Court erred in failing to declare the sale void or voidable. Both sides agree that for a sale to be valid, the seller, acting in good faith, must substantially comply with the notice requirements of the power of sale, and the resultant sale must be a fair one. As discussed above, the notice requirements were substantially complied with in this case. Further, we hold that the resultant sale was fair.

The District Court applied the standard of commercial reasonableness to judge the sale. Appellants argue that the sale was not commercially reasonable because the horses were sold in lots for far less than their value. The District Court answered that:

“The Plaintiffs have not presented any evidence that this [sale in lots] is not reasonable. Deputy Sheriff Schmaing, on the other hand, testified that he has conducted thousands of sales and that he often sells horses in this manner. Further, he testified that he was willing to sell the horses individually should any bidder so request. This method was not commercially unreasonable.

Although this sale is not governed by the Uniform Commercial Code, that code’s discussion of commercial reasonableness is helpful. Section 30-9-507(2), MCA, states:

“The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. If the secured party either sells the collateral in the usual manner in any recognized market therefor or if he sells at the price current in such market at the time of his sale or if he has otherwise sold in conformity with reasonable commercial practices among dealers in the type of property sold he has sold in a commercially reasonable manner . . .”

The above authority supports the District Court’s decision. Although the appellants claim the horses were worth far more than the selling price, that alone is insufficient to render the sale unreasonable. Likewise, the fact that the horses were sold by a method different from that suggested by appellants (in lots as opposed to individually) does not render the sale unreasonable. The District Court correctly decided that the sale was commercially reasonable, and we will not reverse the District Court’s decision.

The final issue raised by appellants is whether the District Court erred in using faulty figures in taking judicial notice that the parties’ contract price was too low to include feeding, and in applying that holding to justify the court’s order.

In its memorandum in support of its order, the District Court stated:

“Before turning to the law regarding the sale, the Court takes notice of two factors. The Court takes judicial notice that the sum of $12 per head per month cannot possibly include the cost of providing extra feed for the horses. The Court further notes that the Plaintiffs have shown knowledge of this fact by making $7,000 payment to the Defendant prior to March, 1985. (114 head x $12 per month x 8 months = $1,824)
“The Court takes notice of this, not to rule on the merits of the contract dispute, but rather as a factor in the notice Plaintiffs had regarding the sale.”

Appellants argue that the District Court erroneously substituted its judgment for that of the parties who agreed on a contract price knowing the horses were to remain with Myers for an indefinite period of time. The court calculated 114 head x $12 per head x 8 months equals $1,824. Since the Roses paid Myers $7,000 between December, 1984, and February, 1985, the court inferred that the Roses recognized that they owed more than $12 per head per month, and that the excess would be applied to pay for feed over and above the original contract amount. This is wrong.

The correct calculations are: 114 head x $12 per head x 8 months equals $10,944, not $1,824. Thus, appellants argue, the $7,000 payment was a partial payment on the $10,944, the balance to be paid when the horses were retrieved. The court drew inferences from incorrect figures and erred in applying those inferences to justify its decision.

Further, appellants argue the court took judicial notice of facts not properly subject to judicial notice.

Appellants are correct when they say the court incorrectly calculated the bill and took judicial notice of a fact not appropriate for judicial notice. Rule 201, M.R.Evid. states:

“(b) Kinds of facts. A fact to be judicially noticed must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.”

However, the error is harmless as there is ample evidence to support the District Court’s conclusion. On cross-examination the appellant Richard Rose, testified as follows:

“Q. Mr. Rose, I believe you stated that the agreement you had with Mr. Myers was that you were to pay him $12.00 per month per horse unit; is that correct? A. That is correct.
“Q. Now that was only for pasture; wasn’t it? That didn’t include feed? A. That is correct.
“Q. And if he had to feed them, that would be an additional charge; wouldn’t it? A. Yes.
“Q. And it doesn’t include any labor on his part, either; does it? A. No.”

Thus, even without the court’s calculations there is ample evidence that the appellants owed Myers more than $10,944 and only paid $7,000. The court took judicial notice that appellants knew they owed Myers for feed and labor costs because they paid Myers in excess of $12 per head per month. The court’s calculations were wrong, but the result is the same. Appellants’ own testimony revealed that the Roses knew they owed Myers for feed and labor costs in excess of the contract price, so although the court improperly took judicial notice of the fact, the result is supported by the evidence. Therefore, it is not necessary to reverse the District Court on this issue.

The order of the District Court is affirmed in all respects.

MR. JUSTICES HARRISON, SHEEHY, WEBER, GULBRANDSON and MORRISON concur.

MR. JUSTICE HUNT,

I concur in the result reached by the majority, but cannot agree with its analysis of the constitutional challenge raised by appellants.

The majority reaches its decision without addressing appellant’s claim that Section 71-3-1203, MCA, is unconstitutional as violative of due process. Appellants first raised the issue in their initial complaint before the District Court. They gave notice to this Court of the constitutional challenge in compliance with Rule 38 M.R.App.Civ.P. Appellants have standing to challenge the statute. I cannot agree with the majority opinion that it is unnecessary to decide whether Section 71-3-1203, MCA, is constitutional. The issue is squarely before us and cannot be ignored.

I would hold that Section 71-3-1203, MCA, is clearly unconstitutional. The statute violates the due process clauses of the state and federal constitutions. However, I concur in the affirmance of the District Court’s decision because the appellants have already had their hearing. Following the sale, the appellants brought an action in the District Court which they litigated to a final judgment, and from which they now appeal. They received the full benefits of a trial in which they had an opportunity to fully present their case. The District Court found in favor of the respondents. Therefore, it is unnecessary to reverse the District Court and remand this case for a hearing.

The agister’s lien statute is clearly unconstitutional, however, because there is significant state action involved, and because the statute provides neither notice nor an opportunity to be heard prior to deprivation of property.

First, it is clear there is significant state action involved. The Third Circuit Court of Appeals found state action from the mere enactment of a statute authorizing a garageman to sell a customer’s vehicle for nonpayment of a bill. Parks v. Mr. Ford (3d Cir. 1977), 566 F.2d 132. The state action under Section 71-3-1203, MCA, is far more significant. The sheriff is given a copy of the bill, a description of the property, and the name of the owner. The sheriff then must advertise and conduct the sale, he applies the proceeds of the sale to the debt, and provides the buyer with a bill of sale. Clearly this constitutes significant state action.

Second, the statute does not satisfy the minimum due process requirement elaborated by either the Montana or the United States Supreme Court. As this Court stated in Nygard v. Hillstead and Coyle (1979), 180 Mont. 524, 528-529, 591 P.2d 643, 645:

“It is fundamental that “[n]o person shall be deprived of life, liberty, or property without due process of law.” 1972 Mont. Const. Art. II, Section 17. “ ‘It is well settled that notice and opportunity to be heard are essential elements of Due Process.’ ” Halldorson v. Halldorson (1977), 175 Mont. 170, 573 P.2d 169, 171.”

The United States Supreme Court has addressed the due process requirement in the area of garnishment, replevin, and sequestration. That line of cases includes Sniadach v. Family Finance Corp. (1983), 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349; Fuentes v. Shevin (1972), 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556; Mitchell v. W.T. Grant Co. (1974), 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406, and North Georgia Finishing Co. v. Dichem, Inc. (1975), 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751.

In Sniadach, it was held that the Wisconsin prejudgment garnishment procedure whereby the defendant’s wages were frozen in the interim between the garnishment and the culmination of the main suit, without the opportunity for a hearing, violated the Fourteenth Amendment. The Court noted that wages were a specialized type of property and prejudgment garnishment might impose tremendous hardship on wage earners. The Sniadach holding was expanded by Fuentes. In Fuentes, Florida and Pennsylvania statutes were held unconstitutional. Those statutes authorized the issuance of writs ordering state agents to seize a person’s possessions upon the ex parte application of any other person who claimed a right to them and posted a security bond, without providing the possessor with notice or an opportunity to be heard. The Court held that a person whose rights are to be affected is entitled to be heard at a meaningful time and in a meaningful manner, and that the replevin statutes in question were constitutionally defective in failing to provide for notice and hearing. The Court noted that “extraordinary situations” may justify the lack of notice and hearing, but such a situation did not exist in that case.

Fuentes was distinguished by Mitchell wherein it was held that a Louisiana statute which permitted the seller of goods under an installment contract to obtain a writ of sequestration to recover the goods, upon buyer’s default, and without notice or hearing, did not violate due process. There were other adequate safeguards of due process because the writ would issue only upon a verified affidavit, and upon a judge’s authority after the creditor had filed a sufficient bond. The statute entitled the debtor to immediately seek dissolution of the writ unless the creditor proved the grounds upon which the writ issued, and the debtor could regain possession by posting a bond to protect the seller.

The final case is North Georgia Finishing, Inc.. That case relied upon Fuentes to determine that Georgia statutes authorizing garnishment of property other than wages in pending suits, but not providing for notice, hearing, or participation by a judicial officer, violated due process.

The above cases dealt with something less than a sale of the property, i.e., sequestration, replevin, and garnishment. Clearly a permanent deprivation of property, such as occurs in a sale, warrants just as stringent a due process analysis as lesser forms of deprivation. As those cases indicate, due process requires at a minimum both notice and an opportunity to be heard prior to deprivation of property absent extraordinary circumstances, or other sufficient safeguards of due process.

Section 71-3-1203, MCA, does not provide the kind of safeguards which salvaged the Louisiana statute in Mitchell. There is no requirement for a verified affidavit, no participation by a judge, no mandatory bond, and no procedure to seek an immediate halt of the sale. Further, there are no other legal remedies available to sufficiently guarantee due process. The legal procedures available to the owner, such as the institution of an action for conversion or for declaratory relief, are insufficient substitutes for a pre-sale hearing. There is little probability that trial of a contested lien claim can be held within the minimum period preceding transfer to the buyer, and injunctions or other extraordinary remedies are discretionary with the trial court and thus lack the certainty necessary to insure a hearing prior to permanent deprivation.

The question then becomes whether there exists any extraordinary circumstances which would justify the lack of a hearing prior to the sale. The respondent, Schafer, argues that because the personalty involved was live animals, this constitutes an extraordinary circumstance. This argument is not persuasive. The United States Supreme Court in Fuentes discussed what is meant by “extraordinary situations.” As that Court said:

“These situations, however, must be truly unusual .... First, in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a governmental official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance.”

Fuentes, 407 U.S. at 90-91, 92 S.Ct. at 1999.

Thus, the Court has allowed summary seizure to collect the internal revenue of the United States, to meet the needs of a national war effort, to protect against the economic disaster of a bank failure, or to protect the public from misbranded drugs and contaminated food. The present situation does not qualify as an important governmental interest. It is a private dispute between two parties. State intervention in a private dispute hardly compares to state action furthering a war effort or protecting the public health, and is of insufficient importance to override the due process requirements of notice and hearing. Therefore, I would hold that Section 71-3-1203, MCA, is violative of due process as there is no provision for notice and hearing prior to deprivation of property.

The question remains what kind of notice and hearing satisfy due process requirements? The Supreme Court in Fuentes stated that notice must be granted at a meaningful time and in a meaningful manner. Fuentes, 407 U.S. at 80, 92 S.Ct. at 1994. Further, the Court noted that leeway remains to develop a form of hearing that will minimize unnecessary cost and delay while preserving the fairness and effectiveness of the hearing in preventing seizures of goods where the party seeking the seizure has little probability of succeeding on the merits. Sniadach, 395 U.S. at 343, 89 S.Ct. at 1823.

The hearing should establish the validity, or at least the probable validity, of the underlying claim before an alleged debtor can be deprived of his property. Consideration should be given to the interests of the parties including the basis of the underlying claim, the nature of the property involved, i.e., its value, uniqueness, etc., and the need for prompt action. The hearing need not be a full blown trial-type hearing, but must protect a property owner’s use and possession of property from arbitrary encroachment. This is an especially relevant danger where the State seizes and sells goods merely upon the application of a private party.

Because the appellants have properly challenged the constitutionality of Section 71-3-1203, MCA, the issue must be addressed. However, I concur in the result reached by the majority and would affirm the District Court in all respects.

I concur.


source: Caselaw Access Project

author: MR. JUSTICE SHEEHY

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WILFRED EARL PALMER, Defendant and Appellant.
    No. 85-536.
    Submitted on Briefs June 6, 1986.
    Decided Aug. 21, 1986.
    723 P.2d 956.

      C.F. Mackay, Anaconda, for defendant and appellant.
    Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, Ted L. Mizner, Co. Atty., Deer Lodge, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Appellant, Wilfred Earl Palmer, appeals from a judgment of conviction after jury trial of criminal possession of a deadly weapon by a prisoner. The appeal arises from the District Court, Third Judicial District, County of Powell. We affirm.

In September, 1984, Palmer was an inmate at the Montana State Prison at Deer Lodge. Palmer resided, by himself, in cell Number 10 of “X” block which is a maximum security unit. On September 18, 1984, three officers at the prison conducted a routine spot check of the cells in the “X” block. Palmer was removed from his cell and was taken out in the “yard.” Palmer’s cell was then searched. The search revealed a homemade “shank” or knife hidden in the stuffing of Palmer’s mattress. The officers then conducted a body search of Palmer and discovered a piece of metal in his boot.

On October 11, 1984, Palmer was charged by information with the felony offense of possession of a deadly weapon by a prisoner in violation of Section 45-8-318 (1), MCA.

On December 3, 1984, Palmer filed a motion for psychiatric evaluation which was granted. On January 25, 1985, Palmer’s psychiatric evaluation was returned to the court indicating Palmer suffered from no mental disease or defect.

Trial of the cause was eventually set for June 25, 1985. Before the trial date, however, Palmer requested a postponement of the trial date to more fully prepare. The District Court granted Palmer’s motion and reset trial for July 22, 1985.

On the day of trial Palmer, through his counsel, presented the District Court with a motion to dismiss for lack of speedy trial and a motion for change of venue. The District Court denied both motions.

At trial witnesses for the State were the prison officers who discovered the contraband and corrections investigator Robert McNally. Palmer presented no defense.

The jury returned a verdict of guilty. On October 15, 1985, a sentencing hearing was held and Palmer was sentenced to ten years’ imprisonment consecutive to his outstanding sentence.

Palmer raises two issues for our review.

1. Did the District Court err in refusing Palmer's motion to dismiss for lack of a speedy trial;

2. Did the District Court err in refusing Palmer’s motion for change of venue.

Palmer first contends that he was denied his right to a speedy trial. Any person accused of a crime is guaranteed the right to a speedy trial pursuant to the Sixth Amendment to the United States Constitution, which is made applicable to the states by the Fourteenth Amendment. Klopfer v. North Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1. The right to a speedy trial is also guaranteed by Article II, Section 24 of the 1972 Montana Constitution. The test to be applied to determine whether an accused’s right to a speedy trial has been violated was first set forth in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. This Court applied and stated the Barker test in State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-64 as follows:

“These cases involve a sensitive balancing of our factors, in which the conduct of the prosecution and the defendant are weighted in determining whether there has been a denial of the right to a speedy trial. The four factors to be evaluated and balanced are:

“(1) Length of delay;
“(2) Reason for delay;
“(3) Assertion of the right by defendant; and
“(4) Prejudice to the defendant.”

This Court has stated that the first of the Barker factors, the length of delay, is the trigger to a speedy trial inquiry. There is no need to examine the latter three factors unless some delay deemed presumptively prejudicial has occurred. State v. Harvey (1979), 184 Mont. 423, 603 P.2d 661.

The delay here, 256 days from the date Palmer was charged until the first date set for trial, is long enough to trigger a speedy trial inquiry. See State v. Chavez (Mont. 1984), [213 Mont. 434,] 691 P.2d 1365, 41 St.Rep. 2219 (214 days); State v. Ackley (1982), 201 Mont. 252, 653 P.2d 851 (257 days); State v. Fife (Mont. 1981), 632 P.2d 712, 38 St.Rep. 1334 (195 days); State v. Freeman (1979), 183 Mont. 334; 599 P.2d 368 (207 days); State v. Cassidy (1978), 176 Mont. 395, 578 P.2d 735 (246 days). The delay in the instant case gives rise to a presumptive deprivation of Palmer’s speedy trial right, and shifts the burden to the State to give reasons why the trial should proceed. Ackley, 201 Mont. at 256; 653 P.2d at 853. In this respect, the State must either give a reasonable excuse for the delay, or show that the defendant was not prejudiced thereby. If there exists both excuse and prejudice, these two factors must be balanced.

The second Barker factor is reason for delay. In the instant case Palmer was responsible for two delays. One was for a seven-day period, November 1, 1984 to November 7, 1984, during which a new judge was called in pursuant to Palmer’s motion. The second delay attributable to Palmer occurred from December 3, 1984 to January 25, 1985, 54 days, during which time Palmer underwent mental evaluations pursuant to his own motion. Thus of the 256 days of delay, 61 days are attributable to Palmer reducing the delay not attributable to him to 195 days. Of these 195 days, there is no evidence to suggest nor does Palmer contend bad faith or oppressive tactics by the State. Institutional delay weighs less heavily against the State in the Barker balancing process.

The third factor under Barker is “assertion of the right by defendant.” Palmer made a timely assertion of his right to a speedy trial by raising the issue before the commencement of his trial. State v. Steward (1975), 168 Mont. 385, 390, 543 P.2d 178, 182.

The final Barker factor is “prejudice to the defendant.” In Barker, the United States Supreme Court identified three interests of a defendant which may be prejudiced by a delay in coming to trial. The interests are: (1) to prevent oppressive pre-trial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118.

Applying these interests to the facts of the instant case we held that Palmer was not prejudiced by the State’s delay in bringing his cause to trial. First, Palmer suffered no pretrial incarceration because he was already incarcerated for the duration of the proceedings on another charge. Second, there is nothing in the record to indicate that the time involved in coming to trial caused any additional or unusual anxiety and concern to Palmer. The final interest involved in the prejudice factor is the impairment of Palmer’s defense. Because Palmer did not present a defense, it is clear that he was not prejudiced in this manner. Thus, our review of the above interests leads us to the conclusion that Palmer was not prejudiced by the delay in bringing his cause to trial.

We hold that under the four factor balancing test of Barker, Palmer was not denied his right to a speedy trial and the District Court did not err in denying Palmer’s motion to dismiss.

Palmer next argues that the District Court erred in denying Palmer’s motion for a change of venue. Section 46-13-203, MCA, provides:

“(1) The defendant or the prosecution may move for a change of place of trial on the ground that there exists in the county in which the charge is pending such prejudice that a fair trial cannot be had in such county. The motion must be made at least 15 days prior to trial except that, if good cause is shown, it may be made thereafter.
“(2) The motion must be in writing and supported by an affidavit which must state facts showing the nature of the prejudice alleged. The defendant or the state may file counteraffidavits. The court shall conduct a hearing and determine the merits of the motion.
“(3) If the court determines that there exists in the county in which the prosecution is pending such prejudice that a fair trial cannot be had, it shall:
“(a) transfer the cause to any other court of competent jurisdiction in any county in which a fair trial may be had;
“(b) direct that a jury be selected in any county where a fair trial may be had and then returned to the county where the prosecution is pending to try the case; or
“(c) take any other action designed in insure that a fair trial may be had.”

In State v. Ritchson (1982), 199 Mont. 51, 54, 647 P.2d 830, 832, this Court studied the requirements of proof for a party seeking to change venue as follows:

“A defendant seeking a change of venue must show that there is reasonable grounds to believe that a prejudicial atmosphere exists within the present venue which creates a reasonable apprehension that he cannot receive a fair trial.”

It is Palmer’s contention that a change of venue should have been granted in the instant case because prejudice exists in Powell County against inmates at the prison. Palmer further contends that, because a Citizen Protection Association had been formed in Powell County and because a large number of the prison employees lived within the community, there existed such prejudice in the county that a fair trial could not be had.

Palmer, however, made no showing of a “prejudicial atmosphere” in Powell County other than stating in his memorandum in support of his motion for change of venue the above listed contentions. Further, we have reviewed the record of the voir dire and conclude that an impartial jury was empaneled. Here, as in State v. Bashor (1980), 188 Mont. 397, 614 P.2d 470, all the jurors stated under oath that they could return a verdict based solely on the evidence. This belies the statement that all Powell County juries are unalterably prejudiced by the conditions at the prison.

We, therefore, hold the District Court did not err in denying Palmer’s motion for a change of venue because Palmer made no showing that there existed such prejudice that a fair trial could not be had in Powell County.

We affirm the District Court.

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


text:
    In re the MARRIAGE OF VYONNE G. HEREFORD, Petitioner and Appellant, and FRANK G. HEREFORD, Respondent and Respondent.
    No. 85-538.
    Submitted on Briefs May 30, 1986.
    Decided Aug. 21, 1986.
    723 P.2d 960.

      Ferguson & Mitchell, Carol Mitchell, Missoula, for petitioner and appellant.
    Tipp, Hoven, Skjelset & Frizzell, Raymond P. Tipp, Missoula, for respondent and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

This is an appeal from the Findings of Fact, Conclusions of Law and Order entered by the District Court of the Fourth Judicial District, Missoula County. The District Court refused to find Frank Hereford in contempt for failure to comply with a divorce decree, and awarded Frank his attorney’s fees.

In 1979 the Herefords were divorced. Mr. Hereford was given custody of the children, and was allowed to stay in the family home until July 1981. The home was the only substantial asset of the parties and after the children reached eighteen, it was to be sold and the proceeds divided between the parties.

In March 1985, Vyonne Hereford moved for a temporary restraining order and order to show cause as to why Frank should not be held in contempt for failure to comply with the dissolution decree. She alleged that several items of personal property have not been divided between the parties. She also alleged that Frank had not maintained the real property or placed the house for sale. She requested that she be allowed to sell the house and have the proceeds equitably divided.

A hearing on the motion was held in June 1985. The District Court found that the allegations in Vyonne’s petition were untrue and so unfounded upon reasonable grounds as to constitute harassment. The court refused to hold the husband in contempt, quashed the temporary restraining order, and awarded Frank his attorney’s fees. From this order, Vyonne appeals.

The wife raises three issues on appeal:

1. Does the District Court possess any authority, under the Uniform Marriage and Dissolution Act (UMDA), Title 40, MCA, or otherwise, to award attorney fees for “vexation” in noncustodial litigation, without taking into consideration the financial circumstances of the parties?

2. In the circumstances of this case, was the court justified in awarding attorney’s fees to husband, where wife made certain factual errors in her preliminary affidavit, but showed at hearing that the primary marital asset (and the only one in which she had been awarded a substantial interest under the 1979 divorce decree), the family home, was unsold in 1985, though required to be sold in mid-1981 by the terms of the decree?

3. Was the court justified in issuing an order refusing to take any action on, or even address, the issue of effectuating the 1979 decree, in effect providing husband with free housing, and indefinitely confiscating wife’s share of the marital estate?

The first issue is whether the District Court has the authority under the UMDA to award attorney’s fees for vexation in noncustodial litigation, without taking into consideration the financial circumstances of the parties. We hold it does not. Under the UMDA, there are two statutes which allow district courts to award attorney’s fees against a party. The first is Section 40-4-219 (2), MCA, which allows an award of attorney’s fees against a party seeking modification of a child custody decree if the court finds the modification action is vexatious and constitutes harassment. That statute does not apply to the case at hand. This is not a child custody argument.

The second statute which authorizes awards of attorney’s fees is Section 40-4-110, MCA. That statute provides that, after considering the financial resources of both parties, the court may order a party to pay a reasonable amount for attorney’s fees. The purpose of this statute is to equalize the status of the parties in a dissolution proceeding. Thompson v. Thompson (Mont. 1981), 630 P.2d 243, 244 [38 St.Rep. 1022.] It was not intended to be punitive. Thus Section 40-4-110, MCA, does not give the District Court authority to award attorney’s fees in this case without considering the financial resources of the parties.

The second issue on appeal is whether under the circumstances of this case the District Court was justified in awarding attorney’s fees to the husband. We hold it was. The general rule is that a party is not entitled to attorney’s fees absent a specific contractual provision or statutory grant. In Re Marriage of Cannon (Mont. 1985), [215 Mont. 272,] 697 P.2d 901, 903, 42 St.Rep. 348, 351; Martin v. Crown Life Insurance Co. (Mont. 1983), 202 Mont. 461, 658 P.2d 1099, 1104, 40 St.Rep. 216, 221. However this Court has recognized a narrow exception to that rule in Foy v. Anderson (1978), 176 Mont. 507, 580 P.2d 114. In Foy we stated that the District Court reserves the power to grant complete relief under its equity powers, which may include awarding attorney’s fees in rare cases. Foy, 580 P.2d at 116-17. In two later cases, we recognized that the award of attorney’s fees is within the district court’s discretion and that absent an abuse of discretion, the district court’s determination will stand. Martin v. Randono (Mont. 1981), 623 P.2d 959, 962, 38 St.Rep. 209, 212; Joseph Russell Realty Co. v. Kenneally (1980), 185 Mont. 496, 505, 605 P.2d 1107, 1112. In this case we hold the District Court did not abuse its discretion. We so hold for two reasons. First, the allegations in the motion for the temporary restraining order and accompanying affidavit were untrue. Second, the language of the original divorce decree stated:

“[T]he real property acquired by the parties at 4318 Rainbow Drive, Missoula, Montana, shall remain in the possession of the Respondent to 1 July 1981, during which time Respondent is ordered to maintain and insure the said property and to pay and discharge the mortgage payments due thereon. Immediately following July 1, 1981, the parties shall cause the said property to be appraised by a qualified appraiser, and placed for sale, and upon said sale, the net proceeds shall be divided equally between the Petitioner and Respondent.”

The language of the decree does not impose a duty on Frank alone to sell the house. It charges both parties with the responsibility of listing and selling the house. In bringing this contempt action against Frank, Vyonne forced him to incur attorney’s fees to defend himself. The District Court did not abuse its discretion in awarding Frank those attorney’s fees.

The third issue raised by appellant is whether the District Court abused its discretion in taking no action to enforce the property settlement decree. In her original motion for the temporary restraining order, the appellant requested that she be authorized to list and sell the house.

The problem in this case is in the drafting of the original dissolution decree. The language “the parties shall cause the said property to be appraised by a qualified appraiser, and placed for sale . . . .” is not a model of clarity in drafting. The decree places no specific burden on an identifiable party within any time period. It requires only that someone appraise and list the house. It technically does not even require the house to be sold. The property could be, and has been, listed for years without selling. Yet sales remain within the language, if not the spirit, of the decree. Clearly the decree must be modified to place specific burdens on identifiable parties to get the house sold within a reasonable time. Since the District Court did not address this issue, we remand this case to the District Court to make such further provision for sale of the house as may be needed. The remainder of the decree is affirmed.

Remanded with instructions. No costs to either party.

MR. JUSTICES MORRISON, HARRISON, WEBER and HUNT concur.


author: MR. JUSTICE GULBRANDSON

text:
    In the MATTER OF S.B., Youth in Need of Care.
    No. 86-20.
    Submitted March 28, 1986.
    Decided Aug. 21, 1986.
    724 P.2d 168.
    Morin & Collins, Colleen Collins, Billings, for appellant.
    Harold Hanser, Co. Atty., Greg Mullowney, Deputy Co. Atty., Olsen, Christensen & Gannett, Damon Gannett, Billings, for respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

B.R. (the mother) appeals a Yellowstone County District Court order which terminates her parental rights to her daughter S.B. and awards custody to the Montana Department of Social and Rehabilitative Services (SRS). The sole issue on appeal is the sufficiency of the evidence to support the court’s order. We affirm.

In February 1984 appellant gave birth to a daughter, S.B. Appellant and the putative natural father of S.B. were divorced prior to the birth. The child had some health problems from birth. She was underweight and a poor eater, initially had some kidney problems, had club feet, and had problems with gastroesophageal reflux (food regurgitation). The child was hospitalized for about three weeks after birth and was released. Approximately three to four weeks later, S.B. was re-hospitalized and Doctor Sauer, a pediatrician, diagnosed S.B. for a “failure to thrive,” i.e., a failure to maintain either normal height, normal weight, or a combination of both, in comparison to standardized charts. Doctor Sauer also termed S.B. hypotonic (low muscle tone), which he described as a child who was extremely “floppy” with almost no strength. After being re-hospitalized S.B. gained a suitable amount of weight in the hospital.

Appellant has a history of mental problems and has at least twice attempted suicide. Dr. Donna Veraldi, a licensed clinical psychologist, twice evaluated appellant and testified that appellant has a schizotypal personality disorder which would be present throughout her lifetime. The doctor added that such a disorder is acquired over a long period of time and is difficult to treat in therapy.

In March 1984 when S.B. was discharged from the hospital, Lori Freck, a registered nurse with the Yellowstone City-County Health Department, began working with S.B. and appellant. Freck instructed appellant in parenting skills, basic infant care and health care. She felt the child was not consuming enough formula and that the mother was not feeding the child as instructed.

The Montana Center for Handicapped Children (the Center) evaluated S.B. in June 1984, November 1984, and March 1985. In June 1984 when S.B. was approximately four months old, the Center diagnosed S.B. as having a high risk for developmental delay. The Center found that S.B. was 20% underweight for her height. The Center also found an overall developmental gross motor delay and a one to two month delay in her functional abilities.

In August 1984 SRS filed a petition for the temporary investigative authority and protective services in regards to S.B. The Youth Court granted SRS temporary investigative authority over S.B. for a period of 90 days. Also in August 1984 S.B. was placed in foster care part of each week and with her mother part of each week.

In November 1984 when S.B. was approximately nine months old, the Center diagnosed S.B. as having a failure to thrive and developmental delays. The Center found that S.B. was four to six months behind in her communication skills, that S.B. was below the fifth percentile in weight for age and in weight for height, that S.B. was 18% underweight for height, and that S.B. performed tests at a mental age of 5% months which indicated a significant delay in cognitive skills.

In November 1984 SRS filed a motion to extend the order for temporary investigative authority and protective services. The Youth Court granted the motion for extension. In February 1985 SRS filed a petition for permanent custody and authority to assent to adoption.

In March 1985 when S.B. was thirteen months old, the Center again diagnosed S.B. as having a failure to thrive and developmental delays. The Center found that S.B. functioned at a 6 Vi month level in a motor development test, that S.B. had made a four month improvement in gross motor skills in the last nine months, that S.B.’s language skills were from three to five months behind, that S.B. was 16% underweight for her height, that her weight was below the fifth percentile, and that S.B. had an approximate mental age of thirteen months.

Also in March 1985, appellant entered into a service treatment agreement with the county children’s services agency. The Youth Court approved the service treatment agreement which was signed by appellant and by a social worker. In April 1985 the named putative natural father filed an affidavit denying paternity and consenting to the termination of his parental rights. In July 1985 the Yellowstone County District Court held a hearing on the SRS petition for permanent custody.

Dr. Sauer, two social workers who had worked with appellant, and an early intervention specialist from a local school district testified at the hearing. They stated that appellant did not progress adequately in parenting classes, or follow recommendations of professionals involved with S.B., that appellant could not adequately care for S.B. at the present time, and that appellant’s condition and parenting ability, which rendered her an unfit parent, were unlikely to change in the near future.

In August 1985 the District Court filed its findings of fact, conclusions of law, order and judgment which granted permanent custody, and the right to assent to adoption, to SRS and terminated the parental rights of the natural parents of S.B. The mother appeals.

In discussing the standard of review applicable to cases of this nature, we have stated:

“. . . This Court is mindful that the primary duty of deciding the proper custody of children is the task of the district court. As a result, all reasonable presumptions as to the correctness of the determination by the district court will be made . . . Due to this presumption of correctness, the district court’s findings will not be disturbed unless there is a mistake of law or a finding of fact not supported by credible evidence that would amount to a clear abuse of discretion. [Citations omitted].”

Matter of C.A.R. (Mont. 1984), 693 P.2d 1214, 1218, 41 St.Rep. 2395, 2398-2399. However, the State must demonstrate by clear and convincing evidence that the statutory criteria for termination of parental rights have been met before such termination may be ordered. Matter of C.A.R., 693 P.2d at 1219.

The statutory criteria for termination of parental rights under Section 41-3-609 (1), MCA, are that:

“A court may order a termination of a parent-child legal relationship upon finding that the child has been adjudicated a youth in need of care, and (1) an appropriate treatment plan approved by the court has not been complied with, and (2) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.”

Matter of R.J.W. (1982), 197 Mont. 286, 288-289, 642 P.2d 1072, 1074.

Section 41-3-102 (11), MCA, defines a youth in need of care as a “youth who is dependent, abused, or neglected as defined in this section.” Section 41-3-102 (2) states that:

“An ‘abused or neglected child’ means a child whose normal physical or mental health or welfare is harmed or threatened with harm by the acts or omissions of his parent or other person responsible for his welfare.”

A further definition relevant to the instant case is Section 41-3-102 (3), MCA, which defines “harm to a child’s health or welfare” as:

“. . . the harm that occurs whenever the parent or other person responsible for the child’s welfare:
“(a) inflicts or allows to be inflicted upon the child physical or mental injury, including injuries sustained as a result of excessive corporal punishment;
“(c) causes failure to thrive or otherwise fails to supply the child with adequate food or fails to supply clothing, shelter, education, or health care, though financially able to do so or offered financial or other reasonable means to do so;”

The type of inquiry contemplated by Section 41-3-102(3)(a), MCA, includes “ ‘the commission or omission of any act or acts which materially affects the normal physical or emotional development of a youth.’ ” Matter of C.A.R., 693 P.2d at 1220; quoting In the Matter of M.R.L, (1980), 186 Mont. 468, 471, 608 P.2d 134, 136.

In the instant case, credible evidence establishes the three prerequisites required to terminate the parental rights of appellant. Dr. Sauer and the Montana Center for Handicapped Children both diagnosed S.B. as a “failure to thrive” baby. That diagnosis reflected a continuing condition which was present shortly after birth, at nine months of age and at thirteen months of age. There was also testimony that (1) appellant was careless in feeding the baby, (2) appellant did not follow the recommendations of health care professionals, (3) appellant missed many appointments and classes with professionals teaching her parenting skills, and (4) appellant could not adequately care for her child. Thus, there is substantial, credible evidence to support a finding that S.B. is a youth in need of care under the statutory definitions.

The second requirement to terminate appellant’s parental rights is that a court-approved treatment plan must have been unsuccessful or not complied with. One of the social workers testified that the court-approved service treatment agreement was not a success. The agreement itself, with appellant’s signature thereon, was introduced into evidence. Substantial, credible evidence also supports the court’s finding that this requirement was met.

Finally, we also uphold the lower court’s finding that appellant’s conduct or condition rendering her unfit to provide adequate parental care is unlikely to change within a reasonable time. After many months of parenting classes and instruction, appellant was still unable to adequately care for S.B. A social worker familiar with appellant’s parenting opined that appellant’s conduct would not change in the foreseeable future. Moreover, the clinical psychologist stated that appellant’s personality disorder would be present throughout appellant’s lifetime and was difficult to treat in therapy. In sum, there is substantial, credible evidence to support the finding of the third and last requirement to terminate parental rights.

Affirmed.

MR. JUSTICES HARRISON, MORRISON, SHEEHY and HUNT concur.


author: MR. JUSTICE WEBER

text:
    In re the MARRIAGE OF JAMES L. CANNON, Petitioner and Respondent, and PATRICIA R. CANNON, Respondent and Appellant.
    No. 86-135.
    Submitted June 12, 1986.
    Decided Aug. 21, 1986.
    723 P.2d 951.

      Berger Law Firm, Chris J. Nelson, Billings, for respondent and appellant.
    Sandall, Cavan, Smith, Howard & Grubbs, John J. Cavan, Billings, for petitioner and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The wife appeals the maintenance award in this dissolution of marriage. The District Court for Yellowstone County awarded her maintenance of $500 per month until husband's retirement, or her death or remarriage. We affirm.

The issue is whether there is substantial support in the evidence for the amount of maintenance awarded. The parties have stipulated to withdraw a second issue originally briefed, regarding distribution of personal property.

After a two-day bench trial, the court made lengthy findings and conclusions. It found that husband and wife were married in 1956. At the time they were married, the husband had graduated from college with a degree in geology and the wife had graduated from college with a degree in home economics and interior decoration. They have four children all of whom are now adults. The wife was a homemaker throughout the marriage. The family lived in Colorado, Texas, and Montana, where the husband was employed as a geologist for various oil companies. At the time of trial, husband was employed in Billings. His 1984 federal income tax listed his gross income as $74,022.

The court found that the value of the parties’ net marital estate was $288,728, which it divided one-half to each party. The husband received the marital home. The bulk of the value of the wife’s share of the estate is $144,364 from a Dean Witter account. The court ordered that the husband continue to pay the expenses of the two children in college. It also awarded the wife a portion of the husband’s retirement benefits.

The court further found that the wife is an only child and is very attached to her mother, with whom she had lived until she married at age 29. During the parties’ marriage the mother lived with them for two years in Denver and Houston until she returned to work in Billings. The wife moved in with her mother during the dissolution proceedings. Her mother is self-supporting.

The wife submitted a statement of monthly expenses of $1,397.95. The District Court found that those expenditures did not accurately reflect the standard of living enjoyed during the marriage. It found that if the wife’s share of the income-producing portion of the marital estate were safely invested it would yield $12,600 to $22,400 annually. It awarded maintenance of $500 per month. The court also found that there was a good possibility that the wife could, if she desired, find full or part-time employment to supplement her income from the marital estate. The court stated that the wife had no intention of seeking any type of employment, however.

Once it has been determined, as it has here, that a maintenance award is proper, Section 40-4-203 (2), MCA, sets forth the criteria used in setting a maintenance amount:

“(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant facts including: (a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian; (b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (c) the standard of living established during the marriage; (d) the duration of the marriage; (e) the age and the physical and emotional condition of the spouse seeking maintenance; and (f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.”

The scope of this Court’s review is determining whether the District Court has properly considered the factors listed in the statute, and whether there is substantial evidence to support the findings.

The wife cites Marriage of Cromwell (1979), 180 Mont. 40, 588 P.2d 1010, for the rule that the standard of living established during the marriage will be used in setting a maintenance amount. She argues that owning her own home is part of her established standard of living and that she is entitled to be in the same position as the husband, having only a small mortgage left to pay on a home. She plans to buy a new car and use $70,000 of her Dean Witter money to purchase her mother’s 4-bedroom home. The record does not establish that such purchases are necessary to maintain her standard of living. We conclude that in setting the amount of maintenance the court was not required to accept the wife’s plan to buy a new car and to spend $70,000 for purchase of her mother’s home.

The wife contends there is not substantial evidence to support the District Court’s award to her of $500 per month in maintenance, since she listed her monthly expenses at $1,397.95 and she did not list any amount for housing or car payments. She testified that she intended to continue living with her mother following the dissolution. The husband presented testimony by a stockbroker that if the wife invested her Dean Witter account money in tax free treasury bonds, it would yield $12,250 per year. She described other safe investments which would approximately double that return. Even if we assume the lower figure, that along with the $500 in monthly maintenance would cover the expenses the wife has listed. Additionally, the District Court found that several items listed as expenses did not accurately reflect the standard of living enjoyed by the wife during the marriage. The wife’s testimony on cross-examination supports the District Court’s findings that a portion of the expenses listed were not for the wife’s benefit, but for the benefit of the parties’ children. These included $200 per month for gifts and $100 per month for telephone expenses.

The wife also listed as monthly expenses $150 for utilities, $9.75 for newspaper, $250 for food, and $7.75 per month for trash pickup. The court found that these expenses “contemplate the cost of those items for both [the wife] and her mother. The court finds that under those circumstances, the mother will contribute reasonably to some of those expenses, namely utilities, house maintenance and food.” That finding is supported by the wife’s testimony on the bases for the expenses she listed and on her mother’s financial self-sufficiency. The court also found the wife’s $200 expense for clothing each month unreasonable, particularly since she is not employed outside the home and “does not require an extensive wardrobe for any reason.”

The wife also argues that the District Court cannot presume that she would be able to find a job. The expert testimony was that because of her age she would probably not be able to obtain employment in Billings. We have carefully reviewed the District Court’s findings and have concluded that the court did not set the maintenance amount based on an assumption that the wife would find a job. The court found that the wife “intends to make no effort whatever” to find employment.

We conclude that the District Court’s extensive findings demonstrate that, in setting the amount of maintenance, it considered the relevant factors set out in Section 40-4-203 (2), MCA: the wife’s financial resources including marital property apportioned to her, her ability to meet her needs independently, the standard of living established during the marriage, the duration of the marriage, the age and physical and emotional condition of the wife, and the ability of the husband to pay maintenance. The District Court is not required to draw up a monthly budget of the wife’s reasonable expenses. We hold that there is substantial support in the evidence for setting the maintenance amount at $500 per month. We affirm.

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


text:
    LARRY LEE DILLREE and Barbara Ann Dillree, Plaintiffs and Appellants, v. CLAYTON E. DEVOE, Defendant and Respondent.
    No. 86-170.
    Submitted on Briefs May 30, 1986.
    Decided Aug. 21, 1986.
    724 P.2d 171.

      Byron W. Boggs, Missoula, for plaintiffs and appellants.
    David Rodli, Missoula, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The Dillrees appeal the decision of the District Court for Missoula County declaring certain transactions between the parties to be sales rather than loans and awarding Mr. Devoe property and attorney fees. We affirm.

The issues are:

1. Did the trial court err in concluding that the transactions were sales rather than secured loans, and in doing so did it fail to apply the principles of Murray v. Butte-Monitor Tunnel Mining Co. (1910), 41 Mont. 449, 110 P. 497?

2. Did the trial court err in holding that the transactions at issue were not usurious secured loans of money?

3. Did the trial court err in holding that the Montana Consumer Loan Act does not apply to the transactions?

4. Did the trial court err in awarding attorney fees to Mr. Devoe?

In this case, the parties presented directly contradictory evidence in a trial to the District Court, sitting without a jury. The Court entered extensive findings and conclusions. It found that the Dillrees had been self-employed in the logging business since 1969. They had owned a number of skidders, tractors, trucks, loaders and vehicles and had obtained financing from six banks and three credit and acceptance corporations. In many of these, equipment or vehicles had served as collateral. As a businessman for 16 years Larry Dillree knew that titled property is not held in the name of a lender during the repayment period, that bills of sale on untitled equipment are not provided to a lender, and that a borrower need not obtain reconveyance. He was aware that the function of a bill of sale is to convey ownership and that one executes a Montana certificate of title only when selling or transferring ownership of motor vehicles. Barbara Dillree demonstrated knowledge of the same facts.

In the fall of 1984 the Dillrees were in financial distress and attempted to secure loans from several banks, but were turned down. Larry Dillree approached Mr. Devoe, to whom the Dillrees had several years before sold a contract for deed on some real estate. Mr. Devoe purchases contracts in seven western states, but was not in the business of loaning money.

The court found that Larry Dillree initially requested a loan. Mr. Devoe refused the loan, stating he was not in the business of loaning money. After being told that Mr. Devoe was in the business of buying property, Mr. Dillree suggested he would sell certain property if he could be assured of the opportunity of buying it back. It was agreed that two items of property, a 1979 double-wide mobile home and a 30-foot boat, would be purchased for $5,000. It was also agreed that the Dillrees would retain possession of the property.

After Larry Dillree had taken the titles and a written “Lease-Rental Agreement” home overnight, he and Barbara Dillree executed the lease-rental agreement. Prior to receiving the $5,000, Mr. Dillree provided Mr. Devoe the necessary lien releases and accompanied Mr. Devoe to the county courthouse to transfer the titles to the mobile home and boat. The parties intended that in six months the Dillrees could pay Mr. Devoe $6,000 and receive back title to the mobile home and the boat.

In December 1984 Larry Dillree requested another $2,000 from Mr. Devoe. A second agreement was reached in which Mr. Devoe took title to a 1968 White truck tractor with log loader and a 1978 Trapper travel trailer. The agreement called for a payment of $2,200 in one month’s time. It was also memorialized in a written “Lease-Rental Agreement.”

Neither of the obligations were paid in a timely fashion. The Dillrees were unable to make any payments except for $1,500. In May 1985, Mr. Devoe demanded they surrender all four pieces of property. None of the property, with the exception of the mobile home, had been kept in Ovando as required in the written agreements. At the time of trial, Mr. Devoe did not know the whereabouts of the travel trailer or the truck tractor. The Dillrees filed a complaint and petition for temporary restraining order alleging fraud, usury, breach of good faith and fair dealing, and outrageous conduct. A hearing was held, and the District Court concluded that the parties entered into valid contracts by which property was sold to Clayton DeVoe subject to an intended repurchase provision not actually reduced to writing. The court concluded that the subject transactions were not fraudulently arranged, were not loans of money by Clayton DeVoe, and were not usurious transactions.

The District Court entered judgment in favor of Mr. DeVoe and awarded him the immediate right to possession of the mobile home, the boat, the travel trailer and the White truck tractor.

I

Did the trial court err in concluding that the transactions were sales rather than secured loans, and in doing so did it fail to properly apply the principles of Murray v. Butte-Monitor Tunnel Mining Co. (1910), 41 Mont. 449, 110 P. 497?

The Dillrees argue that these transactions were not sales. They point out that this Court has listed four factors which, if present, tend to confirm the view that a transaction is a security arrangement or a mortgage and not a sale. The four factors are: 1) the transaction in its inception had for its purpose a loan, not a sale; 2) the grantor was in financial distress at the time of the transaction; 3) the price appears to have been grossly inadequate; and 4) according to the grantee’s own theory, the transaction did not amount to an absolute sale, but to a conditional sale, that is, a sale with an option to repurchase. Bermes v. Sylling (1978), 179 Mont. 448, 458, 587 P.2d 377, 383, citing Murray v. Butte-Monitor Tunnel Mining Co. (1910), 41 Mont. 449, 110 P. 497. The Dillrees’ position is that these four factors are present in this case, and that the District Court’s judgment should be reversed.

We initially point out that in both the Murray and the Bermes cases, this Court upheld the trial court’s findings of fact that the questioned transactions were loans and that the four factors were present. Here, the fact-finder did not conclude that the transactions were loans. The parties agree that factors (2) and (4) were present. It is undisputed that the Dillrees were in financial distress, and Mr. DeVoe characterized the transactions as sales with options to repurchase. However, it is not agreed that factors (1) and (3) were present, and the District Court did not find that all four factors were present. Our standard of review of findings of fact is whether the District Court’s findings are clearly erroneous. Lacey v. Herndon (Mont. 1983), [205 Mont. 379,] 668 P.2d 251, 255, 40 St.Rep. 1375, 1380.

The District Court’s finding which goes to factor (1), the purpose of the transaction, was:

“Just prior to October 15, 1984, Larry Dillree contacted Clayton Devoe’s business, initially speaking on the telephone to Mr. Devoe’s son, Charles, to request a loan for the purpose of preparing his business equipment for sale in the Spring. Mr. Devoe refused to loan Mr. Dillree the money, stating that Mr. Devoe was not in the business of loaning money. The refusal was in keeping with Mr. Devoe’s normal business practice, though he regularly is asked for loans of money. After being told by Mr. Devoe that he was in the business of buying property, Mr. Dillree suggested that he would sell certain property to Mr. Devoe if he could be assured of the opportunity of buying it back at the expiration of six months. Mr. Devoe agreed

Mr. Devoe’s testimony supported the above finding of fact. He testified that he conveyed to Mr. Dillree that he “did not loan money ever,” and that it was Mr. Dillree who brought up the idea of a sale of some of the Dillrees’ property with a right of repurchase. We conclude there is substantial evidence that the transactions did not in their inception have for their purposes loans.

The values of the mobile home, boat, truck tractor, and travel trailer were disputed, and the Dillrees claim factor (3) was present because their values far exceeded the amount of money received from Mr. Devoe. The adequacy of consideration is tested by the conditions existing at the time of the transaction. Boysun v. Boysun (1962), 140 Mont. 85, 89, 368 P.2d 439, 441. A Missoula mobile home dealer testified that the value of the mobile home, which would have to be moved from Ovando on a repossessed, cash basis sale, would not significantly exceed $5,000. The boat had its flooring out and, according to Mr. Devoe, had little if any value. We conclude that there was substantial evidence to support the District Court’s finding that $5,000 would not significantly exceed the actual value of the mobile home and that “the boat in its present condition would be difficult to sell at any price.”

Mr. Devoe testified at the time of trial that he had not located either the truck tractor or the travel trailer. He testified that based on his knowledge of automobiles in general, he was suspicious of placing any value on the unseen truck tractor. He estimated the value of the travel trailer at $2,000. It is true that the Dillrees presented testimony of higher values for both the truck tractor and the travel trailer. However, we conclude that there was substantial evidence to support the finding that Clayton Devoe reasonably assumed “that any sale price that might be had if he took possession of [the truck tractor and travel trailer] would not significantly exceed $2,200.”

We conclude that the District Court did not err in failing to find that the four factors listed in Murray were present.

II.

Did the trial court err in holding that the transactions at issue were not usurious secured loans of money?

The trial court concluded that “[t]he subject transactions were not loans of money by Clayton Devoe and were not usurious transactions.” The Dillrees cite the principle from Bermes, 587 P.2d at 383, that a transaction which resolves itself into a secured transaction will be treated as a mortgage, whatever name is given it by the parties. The instant case differs from Bermes in that it involves personal, not real, property. In Bermes, the Court went on to discuss tests which indicate whether a deed should be treated as a secured transaction. The first test cited in Bermes is the four-factor test discussed under issue one. We have held that the District Court properly concluded that test was not met. We conclude that the District Court did not clearly err, because under the four-factor test, these transactions do not resolve themselves into secured transactions.

The Dillrees next argue that these transactions meet the definition of loans under Section 31-1-101, MCA:

“Loan of money what constitutes. A loan of money is a contract by which one delivers a sum of money to another and the latter agrees to return at a future time a sum equivalent to that which he borrowed. A loan for mere use is governed by the law on loan for use.”

The contracts as described in Mr. Devoe’s testimony, which was relied upon by the District Court, were sales of property with the opportunity for the Dillrees to repurchase it. They do not fit the above definition.

The Dillrees also contend that these transactions amounted to secured transactions under Section 30-1-201(37), MCA: “[a]n agreement that upon compliance with the terms of the lease the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.” That statement describes the title of the written agreement combined with the oral understanding that the Dillrees would regain title to the property upon payment of the “lease” amounts. But the parties agree that the written agreement does not accurately reflect their contract. The identification of the agreement as a “lease agreement” is clearly inaccurate. It is more accurately described as a sale with right of repurchase.

Since we have concluded the District Court properly found that the transactions were not loans, we need not consider the contention that the transactions were usurious loans.

Ill

Did the trial court err in holding that the Montana Consumer Loan Act does not apply to the transactions?

We have upheld the trial court’s conclusion that no loans were made. The Montana Consumer Loan Act, Title 32, Chapter 5, MCA, applies to persons engaged in the business of making loans of money. We need not address this issue further. We affirm the trial court.

IV

Did the trial court err in awarding attorney fees to Mr. Devoe?

The Dillrees’ complaint alleged violations of the Montana Unfair Trade Practices and Consumer Protection Act, Section 30-14-101, et seq., MCA. Section 30-14-133(3), MCA, states that, “In any action brought under this section, the court may award the prevailing party reasonable attorney fees incurred in prosecuting or defending the action.” The District Court concluded that “[t]he provisions of the Montana Unfair Trade Practices and Consumer Protection Act do not apply to the subject matter of this action” and that “[pjursuant to the provisions of the Montana Unfair Trade Practices and Consumer Protection Act, Defendant is entitled to his reasonable attorney’s fees for defending the action ...” The Dillrees argue that attorney fees should not be awarded to Mr. Devoe because he did not prevail on the main issue in controversy and because the court concluded the Act did not apply. Mr. Devoe prevailed on the counts of fraud, usury, breach of good faith and fair dealing, and outrageous conduct. His title in the property was affirmed. We conclude that Mr. Devoe is the prevailing party in this action which was brought under the Unfair Trade Practices and Consumer Protection Act, and that the District Court properly awarded him reasonable attorney fees.

Affirmed.

MR. JUSTICES HARRISON, SHEEHY, GULBRANDSON and MORRISON concur.


author: MR. JUSTICE GULBRANDSON MR. JUSTICE MORRISON,

text:
    In the Matter of LAKE COUNTY’S OBLIGATION FOR OPERATING COSTS OF the FOURTH JUDICIAL DISTRICT, MISSOULA COUNTY, Plaintiff and Respondent, v. MICHAEL HUTCHIN, Harold Fitzner, and Don Peterson, in their official capacities as Lake County Commissioners, and Lake County, a political subdivision of the State of Montana, Defendants and Appellants.
    No. 86-114.
    Submitted on Briefs May 30, 1986.
    Decided Aug. 25, 1986.
    724 P.2d 183.

      MR. JUSTICE MORRISON filed dissenting opinion.
    John Frederick, Co. Atty., Poison, for defendants and appellants.
    Robert L. Deschamps, III, Co. Atty., Missoula, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The Lake County Commissioners and Lake County appeal an order from the Missoula County District Court denying their motion for a change of venue. We reverse and remand with an instruction to the District Court to change the place of trial to the First Judicial District, Lewis and Clark County.

On August 9, 1985, the Missoula County District Court issued an order commanding the Lake County Commissioners within thirty days to pay Missoula County for court expenses Lake County had incurred in Missoula County or to appear and show cause why the payment had not been made.

Lake County responded on September 12, 1985, by petitioning this court for a writ of supervisory control or other appropriate order halting any further action in Missoula County District Court until Missoula County “files a proper pleading in a correct court and commences lawful process.” This Court denied the writ as inappropriate at the time.

Missoula County’s motion to intervene as plaintiff was granted by the District Court on September 20, 1985, after Lake County failed to appear at the hearing scheduled on the motion. The complaint attached to that motion alleges two claims for relief. The first claim requests a writ of mandamus ordering the Lake County Commissioners to reimburse Missoula County for certain court expenses. The second claim requests damages against Lake County and the Commissioners for breach of an implied contract.

Lake County and the Commissioners then moved for a change of venue which the District Court denied on December 11, 1985. They appeal from the denial of their motion for a change of venue.

Lake County first argues that Section 25-2-126(2), MCA, excludes Missoula County as a proper place for trial. That section states:

“The proper place of trial for an action against a county is that county unless such action is brought by a county, in which case any county not a party thereto is also a proper place of trial.”

This language excludes a county which is a plaintiff in the action from being a proper place for trial. Here, Missoula County intervened as a plaintiff in the action and, therefore, is not a proper place for trial.

Missoula County argues that under Section 25-2-125, MCA, it is a proper place of trial for the claims against the Lake County Commissioners and therefore Lake County cannot change venue. Section 25-2-125, MCA, states that “[t]he proper place of trial for an action against a public officer ... is the county where the cause or some part thereof arose.” In McGrath v. Dore (1978), 177 Mont. 178, 180, 580 P.2d 1385, 1386, this Court held that a mandamus action based on an official’s failure to pay wages allegedly due arises in the county “where the public official, whose act the petitioner seeks to compel, resides.” Citing Guthrie v. Mont. Dept. of H. and E. Sciences (1977), 172 Mont. 142, 148, 561 P.2d 913, 916, this Court further noted the public official’s residence “is at that place where he officially refuses to act or neglects to act.” McGrath, 580 P.2d at 1386. Although the statute has been amended, along with the other statutes on venue, since interpreted in McGrath, the revisions have not changed its meaning. Here, the Lake County Commissioners reside in, and refused or neglected to act in, Lake County. Section 25-2-125, MCA, supports Lake County, rather than Missoula County, as the proper place for trial.

Ford v. Mont. Dept. of Fish, Wildlife (Mont. 1984), [208 Mont. 132,] 676 P.2d 207, 209, 41 St.Rep. 220, 222, stated that the general rule enunciated in McGrath and other cases was not absolute and “should not be used to circumvent the goal of providing a forum which is practical and convenient for the plaintiff.” This Court’s intent in Ford was to allow the private citizen a forum which was not so expensive and remote as to render access impractical. Missoula County is not a private citizen and Lake County is neither so remote nor expensive as to be an impractical forum. Contrary to Missoula County’s contention, Ford does not require that venue remain with that county.

Missoula County’s reliance on Section 25-2-121, MCA, as establishing that county as a proper place of trial is misplaced. That statute covers the venue rule for actions on a contract and states that the proper place of trial is either the defendant’s residence or the county where the contract was to be performed. Where no place of performanee is specified, the proper place of trial is the county in which the principal activity was to take place, considering the parties’ obligations and what is necessarily implied from the contract terms. Subsection 2 establishes venue for specific types of contracts. In this case the action is based on an implied contract, for which the terms and the obligations of the parties are not established. There are no facts from which to determine the principal place of performance of the alleged contract. Section 25-2-121, MCA, offers no assistance in determining the proper place of trial.

Section 25-2-201, MCA, requires the court, on motion, to change the place of trial:

“(1) when the county designated in the complaint is not the proper county;
“(2) when there is reason to believe that an impartial trial cannot be had therein;
“(3) when the convenience of witnesses and the ends of justice would be promoted by the change.”

As explained above, there are no grounds for allowing Missoula County, designated in the complaint, to be the place of trial. The question now is where the trial should be held.

Although Lake County and its Commissioners argue that Lake County is a proper place of trial, there are grounds for a reasonable person to believe that an impartial trial cannot be had there any more than in Missoula County. The Missoula County District Court initiated the action against its neighbor, Lake County. The mandamus and contract actions brought by Missoula County allege that district court expenses were paid by Missoula County for transcripts and judicial decisions in cases filed in Lake County. At the times these expenses are claimed to have occurred, Lake County and Missoula County were part of the same judicial district. Considering the nature of this controversy and the parties involved, neither county is a proper place of trial.

Therefore, to permit both parties an impartial trial, the District Court’s order is reversed and that court is directed to enter an order changing the place of trial to the First Judicial District, Lewis and Clark County.

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

MR. JUSTICE MORRISON,

dissenting:

I dissent.

This dissent first addresses the questions of whether the Lake County Commissioners can properly be sued in Missoula County. If they can then Section 25-2-117, MCA, (1985) provides for the joinder of Lake County in such an action.

This is a mandamus action against the county commissioners. Such an action cannot be brought against the county. Therefore, the applicable statute is Section 25-2-125, MCA, (1985), which provides:

“The proper place of trial for an action against a public officer . . . is the county where the cause or some part thereof arose.”

Parts of this cause of action arose in both counties. The failure to pay arose in Lake County. On the other hand the services rendered by Missoula County, for which compensation is sought, were all rendered in Missoula County. The District Court could properly have found venue in either county. The statute specifically provides that any county is the proper place of trial where a part of the cause of action arose. Under such language the trial judge, Honorable James B. Wheelis, was entitled to place the venue in either county and chose Missoula County.

We have here a “King Solomon” decision. The statutes are ignored. The majority apparently feels that justice demands that neither Missoula County nor Lake County entertain this action and that the citizens of Lewis and Clark County are better equipped to dispense justice impartially.

Venue is provided for by the statutes. The statutes clearly provide that venue for an action involving public officials is in any county where part of the cause of action arose. Judge Wheelis, in conformity with applicable statutes, set venue in Missoula County. No abuse of discretion has been shown. The trial court’s ruling should be affirmed.