author: JUSTICE TRIEWEILER JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MILTON LEE KEYS, Defendant and Appellant.
    No. 92-232.
    Submitted on Briefs November 19, 1992.
    Decided May 18, 1993.
    50 St.Rep. 547.
    852 P.2d 621.
    258 Mont. 311.

      See C.J.S. Rape § 66.
    For Defendant and Appellant: Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena.
    For Plaintiff and Respondent: Marc Racicot, Attorney General, George Schunk, Assistant Attorney General, Helena; Patrick L. Paul, Cascade County Attorney, Steven M. Hudspeth, Deputy County Attorney, Great Falls.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Defendant Milton Lee Keys appeals from the judgment and verdict of the Eighth Judicial District Court, Cascade County, convicting him of the crime of sexual intercourse without consent, pursuant to § 45-5-503, MCA. On February 4, 1992, the court sentenced Keys to 15 years in the Montana State Prison, with three years suspended.

We reverse.

The following issues are presented on appeal:

1. Did the District Court abuse its discretion when it admitted evidence of a prior, uncharged incident of sexual misconduct by Keys in the trial for sexual intercourse without consent?

2. Did the District Court’s refusal to allow reference to prior misconduct evidence during opening statements deprive Keys of his right to a fair and impartial trial because Keys had no opportunity to minimize the impact of the evidence before the jury heard testimony about Keys’ misconduct?

3. Was the evidence presented by the State during the trial inherently incredible and insufficient to support the guilty verdict?

On August 3, 1990, Keys was charged by information with the offense of sexual intercourse without consent, a felony, in violation of § 45-5-503, MCA. At trial, there was no dispute that Keys had knowingly engaged in sexual intercourse with the victim, N.B. The sole issue in dispute was whether or not N.B. had consented.

On the evening of July 31,1990, N.B., who was 18 years old at the time, met Keys at TJ’s Lounge in Great Falls. N.B. asked the bartender, who was an acquaintance of hers, for a ride home. When Keys overheard this, he offered to give her a ride and she accepted.

The two of them left the bar in Keys’ vehicle and headed toward N.B.’s home. Keys stopped the car after turning off of Tenth Avenue South, and began kissing N.B. N.B. stated that she thought Keys would resume driving but he instead continued to make sexual advances over her objections. Thereafter, Keys climbed across the seat and, according to N.B.’s testimony, forced her to have sexual intercourse. N.B. testified that she struggled throughout the incident but the car was very confining and she was unable to do anything to stop Keys. Finally, when the assault ended, N.B. was able to get out of the car and immediately went to a nearby house where she notified the police that she had been raped.

While en route to meet with N.B., the police officer who was dispatched to investigate the alleged crime saw a vehicle parked near the crime scene which resembled the description she had been given of the suspect’s vehicle. The officer observed the driver, later identified as Keys, searching for something on the ground and in the car. When the officer asked Keys what he was doing, he claimed he was looking for his wallet which he had lost when he dropped off a male friend at this spot. Although the officer had not yet made mention that she was investigating a possible rape, Keys later admitted he lied when approached by the police officer because he was afraid he might be charged with rape and did not know the age of consent in Montana. After confirming that Keys fit the description of the alleged assailant, the officer placed Keys under arrest and took him to the house where N.B. identified him.

The next day Keys was taken to the hospital for the purpose of gathering samples of his hair, saliva, and blood. While at the hospital Keys told another police officer that he and N.B. had been with another male and female when they left TJ’s and had not been alone in the car. In a later videotaped interview, Keys again told the investigating officers that two females and a male were with him at the time of the alleged incident. At trial, Keys acknowledged that he had lied on both these occasions because, in his words, “I was hoping I would let her [N.B.] think that I had somebody to back up a story for me ... and she would tell them that nothing really happened. It didn’t work out that way.”

Keys did not deny having intercourse with N.B., but claimed that she had willingly participated. The case was tried before a jury which found Keys guilty of the crime of sexual intercourse without consent, and the court imposed a 15-year sentence, with three years suspended. Keys appeals.

The dispositive issue in this appeal is whether the District Court properly admitted evidence about a prior incident of sexual misconduct by Keys.

Prior to trial, the State served Keys with notice of the State’s intent to offer evidence of “other crimes, wrongs, or acts,” to prove Keys’ motive and intent. Keys filed a brief in opposition to the introduction of this evidence, but on January 27, 1992, the court ruled that this evidence would be admissible. The evidence consisted of testimony by another woman, P.B., who had met Keys a month earlier at the Flamingo Lounge in Great Falls. P.B. testified that she talked with Keys and danced with him several times. As she was leaving the Flamingo, Keys told P.B. that he would like to speak with her outside. She testified that Keys walked out of the bar ahead of her, and when they got outside, Keys turned around with the zipper of his pants down and his penis exposed. He then twice told P.B., “I want to fuck your socks off.” P.B. reacted angrily, and when she threatened to call the police, Keys apologized and left her alone. During the trial, when Keys was on the stand and testified about this incident, he admitted that it occurred the way P.B. had described. He characterized his actions as “being basically rude,” and said that he was stupid for having done this.

Keys argues that the court erred in allowing admission of this evidence because it had no relevance to the issue of whether N.B. consented, and did not meet the requirements of Rule 404(b), M.R.Evid. The State counters by arguing that the evidence was relevant because it was highly probative of Keys’ motive and intent to commit sexual acts against nonconsenting female victims.

The standard for review of evidentiary rulings is whether the district court abused its discretion. State v. Crist (1992), 253 Mont. 442, 833 P.2d 1052; State v. Sadowski (1991), 247 Mont. 63, 805 P.2d 537. The district court has broad discretion to determine whether or not evidence is relevant and admissible, and absent a showing of an abuse of this discretion, the court’s determination will not be overturned. Crist, 833 P.2d at 1054.

In Montana, the admissibility of evidence of other crimes, wrongs, or acts (“prior acts evidence”) is controlled by Rule 404(b), M.R.Evid., which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

We have stated that the general rule of Rule 404(b) must be strictly enforced except where a departure is clearly justified, and exceptions to the rule must be carefully limited. Crist, 833 P.2d at 1054; State v. Just (1979), 184 Mont. 262, 271-72, 602 P.2d 957, 962. In order to insure that prior acts evidence is not used as character evidence, this Court has outlined four substantive criteria for the admission of such evidence. State v. Matt (1991), 249 Mont. 136, 814 P.2d 52. This rule, which is a modification of the rule originally developed in Just, 602 P.2d at 961, requires that:

1. There is a similarity between the crime charged and the previous crime, act, or wrong;

2. The other crime, act, or wrong must not be remote in time;

3. The evidence of other acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; and

4. A determination that the probative value of the evidence is not substantially outweighed by the danger of prejudice to the defendant.

In Matt, we also clarified that in addition to satisfying these criteria for admissibility, a party offering such evidence must comply with the procedural requirements originally set forth in Just. In this instance, we first point out that the parties do not dispute that the appropriate procedural precautions were taken. The defendant received proper notice; the trial court admonished the jury at the introduction of the evidence; and the trial court instructed the jury in its final charge on the purpose of the evidence.

The only question in this case is whether a single instance of sexual misconduct, which the State characterized as indecent exposure and assault, was admissible to prove that the sexual intercourse with N.B. occurred without her consent. The State contends that the evidence goes to prove Keys’ motive and intent, and that the requirements of the modified Just rule, as announced in Matt, have been satisfied. Although we concede that the incident with P.B., which occurred only a month before the alleged crime, satisfies the requirement that the prior act not be remote in time, we conclude that this is the only one of the modified Just criteria which is met and that the offered evidence fails to meet the requirements for admissibility in every other respect. The mere fact that the incident with P.B. occurred near in time to the alleged crime is not sufficient to overcome the factors which weigh against admissibility.

The State argues that the indecent exposure incident is sufficiently similar to the charge of sexual intercourse without consent because both acts were illegal and sexual in nature, and were directed toward nonconsenting female victims. Citing State v. Gilpin (1988), 232 Mont. 56, 64, 756 P.2d 445, 449, for the proposition that “[i]t is not necessary that the prior acts and the charged offense be identical,” the State presents examples of prior acts evidence which has been held admissible even though there have been substantial differences between the charged crime and the prior conduct.

Admittedly, in several cases we have held that prior acts evidence meets the similarity standard even though the acts have been quite dissimilar from the actual crime being charged. See, e.g., Sadowski, 805 P.2d 537 (apparent suicide attempt and pointing a gun at a deputy held sufficiently similar to deliberate homicide); State v. McKnight (1991), 250 Mont. 457, 820 P.2d 1279 (sexual assault held similar to sexual intercourse without consent); State v. Gambrel (1990), 246 Mont. 84, 803 P.2d 1071 (prior uncharged sex crimes admissible in deliberate homicide trial); State v. Wurtz (1981), 195 Mont. 226, 636 P.2d 246 (overruled on other grounds) (intimidation threats made from auto similar to sexual assault against a different victim in a parking lot).

While there is no rigid rule for determining when conduct is sufficiently similar, the determination of similarity depends on whether that conduct has some relevance to prove an issue in dispute. We reiterate that in this case the only issue before the jury was whether N.B. consented. We do not find that the indecent exposure incident, followed by an apology from Keys and the fact that he left P.B. alone, is similar or relevant to determining what occurred between N.B. and Keys. The two incidents are so completely different in surrounding circumstances, acts committed, and victims, that we cannot reasonably conclude that one is probative of the other.

In Crist, we held that evidence of the defendant showing a young girl pornographic magazines and attempting to get her to dress in a nightgown were not sufficiently similar to a charge of sexual abuse. We concluded:

These acts are, however, evidence of character. These innuendos would tend to distract the trier of fact from the main question of what actually happened on the occasions charged.

Crist, 833 P.2d at 1055.

In this case, we also find that the innuendos that could be drawn from this evidence would tend to go to Keys’ character and his propensity to act in a certain way and could, therefore, distract the trier of fact from the issue in question. We do not find enough similarity between the acts to conclude that the indecent exposure episode is probative of the issue of N.B.’s consent.

The State next contends that the evidence was offered to prove Keys’ motive and intent which are both permissible purposes under our holding in Matt and Rule 404(b), M.R.Evid., for prior acts evidence. But merely reciting an allowable purpose is not sufficient if the evidence does not further that purpose or that purpose is not an issue in dispute. In this case, the State ultimately argues that the indecent exposure incident is probative of determining whether Keys was concerned with the consent of victims of his sexually aggressive behavior. However, this is in essence an argument that Keys committed the crime for which he was being tried because he is a person of poor character. This is precisely what prior acts evidence may not be used for.

[T]he prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is introduced for some purpose other than to suggest that because the defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial.

John W. Strong, McCormick on Evidence 798 (4th ed. 1992).

Furthermore, it is not Keys’ intent or motive which is the determinative factor in this case. Rather, it is the victim’s intent, and whether she consented to the act of intercourse, which is dispositive of whether a crime was committed. Keys clearly intended to have sexual intercourse with N.B., and even if he intended to do this forcibly and without her consent, this criminal intent would be irrelevant if N.B. consented.

We conclude that the purposes for which the State contends the evidence is being presented are not relevant to the question being tried in this case. The only relevant purpose for the evidence goes to Keys’ character, and this use of prior acts evidence is explicitly prohibited by Rule 404(b), M.R.Evid.

Because the evidence is inadmissible under the first and third criteria, it is not necessary to discuss the remaining requirement under the modified Just rule. For the reasons stated, we hold that the District Court abused its discretion when it allowed RB. to testify about the incident with Keys and remand this case for a new trial.

Inasmuch as we are reversing on the first issue and not allowing the admission of the prior acts evidence, the question of whether Keys’ was deprived of a fair and impartial trial because the evidence could not be discussed during opening statements need not be discussed.

Keys contends that judgment should be entered in his favor because the State’s evidence is insufficient to convict him. He maintains that the evidence presented by the State during the trial is so inherently incredible that it is unworthy of belief. We disagree.

Keys’ argument is premised on his assertion that, given the size of the two parties involved and the size of the car, consensual intercourse was possible, but N.B. could not have been forced to do anything she was unwilling to do. Keys also points to a number of instances during the trial where N.B. gave nondefinitive statements or could not recall certain details.

The State’s evidence consisted of N.B.’s testimony, supported by physical evidence and the testimony of other witnesses who were with her shortly after the alleged rape, which corroborated her testimony. The jury heard and weighed N.B.’s testimony that the sexual intercourse occurred without her consent, and then heard and weighed Keys’ conflicting testimony that it occurred willingly. It is well settled in Montana that uncorroborated testimony of the victim, standing alone, is sufficient for conviction of sexual intercourse without consent. State v. Whitcher (1991), 248 Mont. 183, 810 P.2d 751; State v. French (1988), 233 Mont. 364, 760 P.2d 86.

The jury was also aware that Keys had lied to police officers at various stages of the investigation because he feared a rape accusation, and it was noted that one of these lies occurred before there was any mention that the police were, in fact, investigating a possible rape.

If there is conflicting evidence, it is within the province of the trier of fact to decide who to believe. State v. Medina (1990), 245 Mont. 25, 34, 798 P.2d 1032, 1038 (quoting State v. Brown (1989), 239 Mont. 453, 781 P.2d 281). In this instance, after considering not only the testimony of N.B. and Keys, but also the testimony of other witnesses and physical evidence, the jury, by its verdict, resolved the conflict in favor of the State.

The applicable standard of review for determining the sufficiency of the evidence is

[W]hether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Emphasis added.]

Medina, 798 P.2d at 1037. Although Keys tries to isolate and emphasize some of the particulars that N.B. could not clearly remember, the jury had before it ample evidence to justify resolution of the credibility issue in favor of N.B. and to find that there was lack of consent. We cannot conclude that Keys’ arguments about the size of the car or N.B.’s testimony meet the burden of showing that no rational trier of fact could have reached this decision. Nor do we find the evidence so inherently incredible that it is unworthy of belief.

However, based upon our conclusion that the District Court improperly admitted the evidence of Keys’ prior, uncharged incident of sexual misconduct, the judgment of the District Court is vacated and this case is remanded for a new trial.

JUSTICES HUNT, McDONOUGH and GRAY concur.

JUSTICE WEBER

dissents as follows:

The majority opinion sets forth limited information regarding the claimed sexual intercourse without consent. I believe additional facts should be considered in evaluating the evidence.

The testimony of the eighteen year old victim, N.B., established that she, her female roommate, and her roommate’s male companion had attended the fair at the Great Falls fairgrounds. The three of them went to TJ’s Bar at approximately 12:30 a.m. At the bar the defendant introduced himself to N.B. N.B.’s roommate and boyfriend inadvertently stranded N.B. at the bar assuming she had a ride. While N.B. unsuccessfully attempted to obtain a ride home from other friends, the defendant interrupted and indicated he would give her a ride home. In the car defendant asked N.B. if she would go on a date with him and when she refused, N.B. thought he was offended by her rejection. Defendant stopped the car and commenced kissing her and she reacted by pushing him away and asked him to take her home. He then made various sexual advances, including stating, “I know we are going to make love tonight” to which N.B. responded, “No, we are not.” Without detailing the extensive testimony, N.B. testified to the very forcible act of sexual intercourse by defendant. At the trial photographic exhibits were introduced showing the bruises on the inside of N.B.’s knees which had been caused during the act. After the act, N.B. ran from the car to a nearby home of a friend who happened to be working in an open garage on his car. That friend testified that N.B. appeared holding a sock in her hand, terrified, crying and frantically hysterical. She immediately complained of the rape. The testimony as to her hysterical condition was confirmed by the police officers and others, including the emergency room medical doctor. In addition, after the incident, N.B. moved out of her apartment and back in with her parents because she testified she was scared to death to live alone.

The majority concludes that the District Court abused its discretion when it admitted evidence of the prior incident with P.B. In considering such evidence, it is important to consider the entire Modified Just Rule:

We therefore now adopt the following as the Modified Just Rule which sets forth the basis for the admission of evidence of other crimes, wrongs or acts as referred to and described in Rules 404(b) and 403, M.R.Evid.:

(1) The other crimes, wrongs or acts must be similar.
(2) The other crimes, wrongs or acts must not be remote in time.
(3) The evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
(4) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

State v. Matt (1991), 249 Mont. 136, 142, 814 P.2d 52,56. The Modified Just Rule contains the essential elements of Rule 404(b), which is separately cited in the majority opinion. In addition, as pointed out in State v. Sadowski (1991), 247 Mont. 63, 805 P.2d 537, the Modified Just Rule must be classed as an inclusory rather than exclusory rule. The Sadowski Court stated:

As with its federal counterpart, the Montana rule adopts an inclusionary rather than exclusionary approach, that is, use of the word “may” indicates that the second sentence actually lists theories of relevant examples rather than exceptions ...

Sadowski, 247 Mont. at 70, 805 P.2d at 541.

The majority opinion concludes that the only element of the Modified Just Rule which has been satisfied is paragraph (2), which requires that the other acts must not be remote in time. Here the prior incident with P.B. occurred only a month prior to the crime. I do agree with that conclusion but not with the remaining evaluation of the Modified Just Rule.

The Modified Just Rule requires that the other crime, wrong or act must be “similar.” The majority notes a number of cases in which this Court has concluded that the Rule allows the admission of evidence where acts are quite dissimilar. In addition to the cases cited by the majority, State v. Tecca (1986), 220 Mont. 168, 714 P.2d 136, allowed the admission of evidence on a charge of felony sexual assault. The claimed sexual assault included the defendant’s touching the eleven year old complaining witness and inserting his finger in her vagina. This Court concluded that the other acts were admissible in evidence though not identical and stated as follows:

While the prior acts were not identical to the offense committed in this case, there is sufficient similarity to sustain admission. Each of the incidents involved young girls and occurred in the Tecca home. ... Both R.T. and L.C. testified that they had been awakened in the middle of the night to find defendant next to the bed dressed only in his underwear. These incidents bear sufficient similarity to the charged offense to uphold their admission.

Tecca, 220 Mont. at 172, 714 P.2d at 138. Note that there was no offense at all in the conduct which consisted of an older man sitting on the bed of two young girls dressed only in his underwear. Yet this Court concluded there was sufficient similarity to uphold admission. Clearly Tecca is authority for the conclusion that paragraph (1) of the Modified Just Rule had been satisfied.

In analyzing this issue, the majority stated as follows:

We reiterate that in this case the only issue before the jury was whether N.B. consented.

I believe this is a misstatement of the issue. The issue before the court was whether or not the defendant knowingly or purposely committed the offense of sexual intercourse without consent. As set forth in the Modified Just Rule, evidence may be admissible to prove motive or intent.

We will now consider whether the acts were sufficiently similar to meet paragraph (1) of the Modified Just Rule. Both incidents took place after the defendant met the parties at a bar in the early morning hours and after they left the bar with him. I emphasize that the defendant admitted that his conduct took place as P.B. testified in the present case. The act with P.B. indicated the clear desire, and possible intent, on the part of the defendant to have sexual intercourse with P.B. The conduct is clearly similar to that with which he is charged in the principal case, that being sexual intercourse without consent. There was no consent on the part of P.B. to the sexual exposure and statements made. Such evidence could be construed as an intention on the part of the defendant to have sexual intercourse without consent if necessary. I conclude that the surrounding circumstances, and the acts committed, and the victims themselves, all suggest sufficient similarity to meet the requirements of paragraph (1) of the Modified Just Rule. I would further point out that a failure of the offered evidence to meet any one of the factors does not preclude admissibility. See State v. Randall (1989), 237 Mont. 271, 772 P.2d 868, and other cases therein cited.

We agree with the majority that paragraph (2) of the Modified Just Rule has been met.

Paragraph (3) of the Modified Just Rule states that the evidence may be admissible for other purposes such as proof of motive or intent. Defendant’s conduct with P.B. clearly was not consented to by her. It clearly could be considered by a finder of fact to be evidence of a motive or intent to have sexual intercourse, without consent if necessary. I conclude that the evidence meets the test of paragraph (3) of the Modified Just Rule.

Paragraph (4) of the Modified Just Rule provides that the evidence may be excluded if substantial prejudice outweighs the danger of unfair prejudice or confusion of issues, or is misleading. I conclude that while the evidence certainly may have had some influence upon the jury, there is nothing in the nature of unfair prejudice, confusion of issues or misleading of the jury. I conclude that the evidence meets the test of paragraph (4) of the Modified Just Rule.

In its concluding analysis, the majority opinion again emphasizes that it is not the defendant’s intent or motive which is the determinative factor in this case. It concludes that it is the victim’s intent. I disagree with that analysis. The requirement on the part of the trier of fact was to determine whether or not the defendant knowingly or purposely committed sexual intercourse without consent. I disagree with the majority’s conclusion that evidence of the prior act in this case is not relevant to the question being tried.

I would affirm the conviction of the defendant.

CHIEF JUSTICE TURNAGE and JUSTICE HARRISON concur in the foregoing dissent.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    IN RE THE MARRIAGE OF ROBERT KUKES, Petitioner and Respondent, and JANET KUKES, Respondent and Appellant.
    No. 92-256.
    Submitted on Briefs April 1, 1993.
    Decided May 18, 1993.
    50 St.Rep. 553.
    852 P.2d 655.
    258 Mont. 324.
    See C.J.S. Divorce § 723.
    For Respondent and Appellant: Lyman H. Bennett III, Morrow, Sedivy & Bennett, Bozeman.

      For Petitioner and Respondent: Thomas I. Sabo, Gallatin Gateway.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from an order of the Eighteenth Judicial District Court, Gallatin County, Montana. The order modified a decree of dissolution of marriage. We reverse.

The former husband, respondent Robert Kukes (Robert) commenced this action in 1989 by filing a petition for modification of the 1986 decree, seeking to reduce his child support obligation, share the child’s uncovered medical expenses equally with his former wife, and clarify his visitation rights. Thereafter the former wife, appellant Janet Kukes (Janet) filed a combination petition for contempt and modification or clarification of the decree. These petitions were heard by the District Court, which filed findings of fact and conclusions of law and entered judgment thereon. The decision granted Robert the relief prayed for, and more than he prayed for, including additional relief as determined by the court. This appeal followed.

Janet and Robert were married in Billings, Montana, in November 1981. Their only child, Brittany, was born on August 17, 1984. She has a partial hearing loss and must wear two hearing aids. The marriage was dissolved in Bozeman, Montana, on May 5, 1986. At the time of the dissolution, Robert was enrolled as an undergraduate in the School of Engineering at Montana State University (M.S.U.), while Janet was a graduate student in the School of Education at M.S.U., seeking elementary teacher certification. Janet received certification in December 1986 and moved to Great Falls, Montana, where she taught elementary school and eventually became a case manager for Quality Life Concepts, Inc. Robert received an engineering degree in June, 1990 and moved to Las Vegas, Nevada, where he was employed as an engineer at the time of this appeal.

The parties entered a “marital and property settlement agreement” in April 1986. This agreement was incorporated in the decree of dissolution. It gave Janet sole custody of Brittany, with Robert to have liberal visitation rights. Robert was to pay child support at the rate of $300 per month, adjusted annually based on the Consumer Price Index. He also agreed to maintain major medical and hospital insurance for Brittany’s benefit and to pay all of her uncovered medical, dental, and optical expenses until she reached the age of 21; to establish a trust fund for Brittany at the First Security Bank in Bozeman and to contribute $50 a month to that fund initially and $75 a month after he graduated from college, until Brittany either used the fund for college education or reached the age of 21; and to maintain an $80,000 life insurance policy naming Brittany as the beneficiary.

As support and maintenance, Robert agreed to pay Janet’s expenses for four quarters as a full-time student, including tuition, books, and living expenses. The total sum, $9,800, was to be deferred until six months after Robert had finished college, at which time Robert was to begin making monthly payments, including interest at the annual rate of 10 per cent.

On April 19,1989, Robert filed a petition for modification alleging that he was a full time student without sufficient money to pay child support as provided in the decree, and that he had been denied liberal visitation rights. Janet moved to dismiss this petition, on the grounds that Robert had not shown changed circumstances “so substantial and continuing as to make the terms of the decree unconscionable,” as § 40-4-208(2)(b), MCA, requires. Robert had been a full time student in 1986 when the decree was entered, and he was still a full time student when he filed his petition for modification. The District Court denied Janet’s motion on June 20,1989, noting that the motion was “sound in many respects, particularly on the change of the amount of child support,” but concluding that it should hear Robert’s allegations regarding denial of visitation and establish his visitation rights.

A hearing was set for April 30,1990, but it was continued without a date after Janet requested that the child support issue not be decided until after Robert had completed his education. Robert graduated in June 1990 and in July 1990 he moved to Las Vegas.

On October 29, 1990, Janet filed a petition for contempt and modification or clarification of the decree, alleging that she had not received evidence of health insurance coverage for Brittany; that Robert had not reimbursed her for medical expenses incurred on Brittany’s behalf; that Robert had borrowed $2,197.91 against his life insurance policy and the insurance company had told her the policy might be canceled; and that she had been unable to determine whether Robert had been contributing to Brittany’s trust fund as provided in the decree of dissolution. The District Court heard argument on this petition and on Robert’s petition as well, on February 11, 1991.

Janet presents seven issues referring to decisions not supported by the evidence and constituting an abuse of discretion by the District Court. We have restated them as follows:

1. Whether this Court’s adoption of child support guidelines constituted, in itself, a change of circumstances so substantial and continuing as to make the terms of the decree of dissolution unconscionable, as contemplated by § 40-4-208(2), MCA.
2. Whether the District Court’s findings of fact were sufficient to demonstrate a change of circumstances so substantial and continuing as to make the decree unconscionable, absent a finding that the adoption of the guidelines satisfied the requirement.
3. Whether the District Court erred in failing to consider all of the relevant factors set forth in the applicable statutes and child support guidelines.
4. Whether the District Court should have granted Robert relief that he had not sought, when Janet had no opportunity for contrary argument.
5. Whether the District Court erred in modifying Robert’s child support obligation retroactively.
6. Whether the District Court erred in failing to consider Janet’s prayer for attorney’s fees.
7. Whether the District Court erred in failing to adhere to the statutory requirements for income withholding and in failing to advise the parties of the jurisdiction of the Department of Social and Rehabilitation Services to review and modify child support in the future.

As the first two issues both address the statutory standard for modification of child support, we consider them together. The question common to both is whether the District Court’s modification of child support was justified by a change of circumstances so substantial and continuing as to make the terms of the original decree unconscionable, as § 40-4-208(2)(b), MCA, requires, absent written consent of the parties.

We conclude that child support modification was not justified in this case; therefore we do not address the remaining issues.

In its Finding of Fact No. 16 the District Court stated that this Court’s adoption of the guidelines was “an event constituting substantial change of circumstances for [Robert].” This was the court’s only finding concerning changes in Robert’s circumstances. Thus, even taken in a light most favorable to Robert, the court’s findings of fact fail to show any change in Robert’s circumstances that would justify a reduction in the amount of child support below the amount established in the original decree. Indeed, the record suggests that Robert’s circumstances improved substantially between the time of the original decree, whén he was a student, and the time of the hearing on his petition for modification, when he was employed as a civil engineer.

Our standard of review for an award of child support is that a presumption exists in favor of the district court’s determination. We will reverse a district court’s determination only for an abuse of discretion. In re Marriage of Clingingsmith (1992), 254 Mont. 399, 406, 838 P.2d 417, 421-22. With regard to the district court’s findings of fact, however, we have held that “[ejrror occurs when the court accepts one party’s proposed findings of fact without proper consideration of the facts and where there is a lack of independent judgment by the court.” In re Marriage of Callahan (1988), 233 Mont. 465, 472, 762 P.2d 205, 209. Here, the District Court clearly erred in failing to make findings of fact that support its modification of child support.

In Gall v. Gall (1980), 187 Mont. 17, 20, 608 P.2d 496, 498 we stated that:

the essential requirement is that there be an evidentiary basis to determine that it would be unconscionable to continue the child support payments presently in effect.

Accord, In re Marriage of Forsman (1987), 229 Mont. 411, 747 P.2d 861; In re Marriage of Bliss (1980), 187 Mont. 331, 609 P.2d 1209. We conclude that adoption of the guidelines was not in itself a sufficient change of circumstances to justify modification of child support under § 40-4-208, MCA.

We reverse and remand for entry of an order consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER, HUNT and WEBER concur.


author: JUSTICE GRAY

text:
    JOE SILVA, Plaintiff and Appellant, v. CITY OF COLUMBIA FALLS, Defendant and Respondent.
    No. 92-351.
    Submitted on Briefs November 12, 1992.
    Decided May 18, 1993.
    50 St.Rep. 556.
    852 P.2d 671.
    258 Mont. 329.

      See C.J.S. Municipal Corporation § 588.
    For Plaintiff and Appellant: John H. Bothe and Lauri Wallace, Bothe & Lauridsen, Columbia Falls.
    For Defendant and Respondent: Katherine R. Curtis, City Attorney, Columbia Falls.
   JUSTICE GRAY

delivered the Opinion of the Court.

Appellant Joe Silva (Silva) appeals from an order of the Eleventh Judicial District Court, Flathead County, granting summary judgment to the City of Columbia Falls, Montana (the City). We affirm.

On January 15, 1989, Silva, a Columbia Falls police officer, suffered an industrial injury to his left thigh when he was kicked by an individual he was attempting to arrest. Silva was immediately eligible for workers’ compensation because the injury occurred while he was on duty, and he has received benefits under the Workers’ Compensation Act since the date of his injury. It appears that in approximately March 1989, while he was still off duty due to his leg injury, he fell down some steps.

Silva began treatment for his left thigh injury on January 20,1989, with Dr. Chet Hope, his family doctor in Columbia Falls. On March 2, 1989, Silva applied in writing for police disability retirement benefits, based on a letter from Dr. Hope stating that Silva was currently unable to return to work as a police officer. The claim was denied on March 30,1989. According to a letter to Silva from the city attorney, benefits were denied because statements from Dr. Hope indicated that Silva’s injury would not result in permanent disability or permanent impairment and because an evaluation by the Kalispell Orthopedic Clinic indicated that Silva should be able to return to work in the near future.

Silva was evaluated by an Evaluation Panel at St. Patrick Hospital in Missoula in August, 1989. No specific trauma could be identified as the cause of Silva’s left thigh pain. In addition, the evaluation indicated that Silva’s lumbar spine problem might be related to his falling down steps and that there might be permanent partial impairment of his lumbar spine. Surgical treatment of the lumbar spine specifically was not recommended. The conclusion of the Evaluation Panel was that Silva could return to work on a gradual basis.

In September 1989, the City, through its chief of police, advised Silva that he would be scheduled to begin a gradual return to work on September 27, 1989, unless he was still on certain medication prescribed by his doctor. Dr. Hope subsequently advised the chief of police that Silva continued to require medication for inflammation and pain; Dr. Hope was uncertain how long the medication would be needed.

On March 2, 1990, Silva was examined by Dr. James H. Mahnke, a neurosurgeon, for the purpose of obtaining an opinion about back surgery. Dr. Mahnke’s opinion, based on an MRI scan done in August 1989 and on his own examination, was that Silva was suffering from a back lesion that would respond only to surgery. Dr. Mahnke did not connect the lesion to the January 1989 injury at that time.

On June 6, 1990, the city attorney informed Silva that the City could no longer hold his position on the police force open. She noted the conclusion of the independent medical panel in August 1989 that he could return to work on a gradual basis and advised that the City would terminate him as a police officer unless he arranged to return to work by July 6, 1990.

On June 13, 1990, Silva renewed his request for police disability retirement benefits. In renewing the request, Silva’s attorney stated “it is quite apparent that he is now precluded from returning to work as a patrolling officer ....” The attorney subsequently forwarded a letter from Dr. Mahnke, dated June 11,1990, stating that Silva’s back lesion was attributable to his industrial injury in January 1989 and that Silva “was disabled from working as a police officer from the time of that injury.” This letter, received by the City on June 21,1990, was the City’s first medical evidence indicating that Silva was permanently disabled from performing his duties as a police officer.

The Police Commission of the City of Columbia Falls (Police Commission) considered Silva’s reapplication for benefits on September 7, 1990, and determined that Silva was entitled to disability retirement benefits effective on that date. Silva disputed the Police Commission’s use of September 7,1990, as his entitlement date. The Police Commission subsequently decided that Silva was entitled to disability retirement benefits effective June 21, 1990, the date the City first received medical evidence that Silva was permanently disabled from performing his duties as a police officer.

Silva filed a complaint in District Court alleging that he was entitled to payment of disability retirement benefits retroactive to the date of his injury. He contended that the Police Commission’s decision not to pay disability retirement benefits for the period between the date of his injury and June 21, 1990, was arbitrary and capricious and that it violated §§ 19-10-402 and 19-10-502, MCA.

The City moved to dismiss the complaint, presented additional evidence and affidavits, and requested that its motion be converted to one for summary judgment. Silva filed a cross-motion for summary judgment.

The District Court rejected the City’s argument that it had no authority to review a local government agency’s decision, but granted the City’s motion for summary judgment on other grounds. The court determined that applicable statutes do not provide an express time when a transfer from the active duty list to the retired list is to take effect. It concluded that the Police Commission had discretion in deciding when an officer would be transferred to the retired list and, as a result, entitled to receive disability retirement benefits. Reviewing the evidence before it, the court then concluded that the Police Commission had not acted without a reasonable basis in making Silva’s disability retirement benefits effective June 21, 1990. Silva appeals.

The sole issue before us is whether the District Court erred in granting summary judgment in favor of the City.

Initially, we note the City’s argument on appeal that the District Court erred in refusing to dismiss Silva’s complaint for failure to state a claim on the basis that the court had no authority for judicial review of a police commission’s decision regarding disability retirement benefits. We also note that the City failed to cross-appeal on this issue. Where a respondent seeks review of rulings on matters separate and distinct from those sought to be reviewed by an appellant, a cross-appeal is necessary. Rouse v. Anaconda-Deer Lodge County (1991), 250 Mont. 1, 817 P.2d 690; Johnson v. Tindall (1981), 195 Mont. 165, 635 P.2d 266. Thus, we are precluded from addressing this issue on appeal.

Silva argues first that the District Court erred as a matter of law in interpreting §§ 19-10-402 and 19-10-502, MCA. Our standard in reviewing a court’s conclusion of law is whether the court is correct. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603.

In essence, Silva argues that §§ 19-10-402 and 19-10-502, MCA, require the payment of police disability retirement benefits as of the date of the original injury or disability. Section 19-10-502, MCA, provides for both the amount and commencement of disability retirement benefits: when an officer is transferred to the retired list, “he shall thereafter receive monthly payments from the city’s police retirement fund ....” Nothing in the statute requires payments to be made before transfer to the retired list or for any period of time prior to the transfer from the active list to the retired list.

Section 19-10-402, MCA, sets forth how the determination of transferring a police officer injured or disabled in the line of duty from the active list to the retired list — for purposes of receiving the disability retirement benefits specified in § 19-10-502, MCA — is made. The statute mandates transfer to the retired list when an officer receives duty-related injuries or disabilities and the injuries are, “in the opinion of the board of police commissioners or city council of the city or town, of such character as to impair his ability to discharge his duties as an active police officer....” Section 19-10-402, MCA. The statute is clear that the appropriate entity has discretion in making the determination as to whether and when the injuries or disabilities permanently impair the officer’s ability to perform. A transfer to the retired list is mandatory only upon the making of such an impairment determination.

Silva concedes that neither statute expressly states when a transfer to the retired list must take effect. He argues that the statutes, read together, require benefit commencement as of the date of the onset of the injury or disability. Our discussion of the statutes makes it clear that such a conclusion is unwarranted. No express time for transfer to the retired list is contained in either § 19-10-402 or § 19-10-502, MCA; furthermore, § 19-10-402, MCA, does contain plain language vesting discretion in the police commission or city council authorized to make the impairment determination and any corresponding transfer to the retired list. To accept Silva’s argument would require this Court to insert a provision into the statute which is not contained therein; it also would require us to insert a provision inconsistent with the legislative determination of when and how disability retirement benefits are to be paid. The role of this Court is to ascertain what is contained in statutes; it is not our role to insert or vary provisions of statutes adopted by the Montana legislature. See § 1-2-101, MCA.

Silva also suggests that statutes governing other retirement systems in Montana, particularly the Public Employees’ Retirement System (PERS), buttress his statutory interpretation of §§ 19-10-402 and 19-10-502, MCA. We disagree. Like the statutes before us, the PERS authorizes a specific entity to determine whether a member has become disabled. See § 19-3-1003, MCA. Unlike the applicable statutes here, however, public employee disability retirement benefits are to commence “on the day following the member’s last day of membership service.” Section 19-3-1006, MCA. Thus, in the PERS, the legislature specifically provided a date certain — related to when the member stopped working — for the commencement of benefits. Such a date certain is not contained in § 19-10-402 or § 19-10-502, MCA. Further, § 19-3-1006, MCA, makes it clear that the legislature is aware of how to provide for a result similar to that argued by Silva here. It did not adopt such a provision for local government police disability retirement benefits.

We conclude that §§ 19-10-402 and 19-10-502, MCA, do not require that police disability retirement benefits commence or be paid as of the date of the original injury or disability. As a result, we hold that the District Court did not err in its statutory interpretation.

Silva’s second assertion of error relates to the District Court’s failure to conclude that the Police Commission acted arbitrarily and capriciously in making his disability retirement benefits effective June 21, 1990. Silva contends that there was a total lack of record support for the Police Commission’s determination and that, as a result, the decision was arbitrary and capricious.

We note here that this case does not present itself in the usual posture of a review by this Court of a grant of summary judgment. The District Court determined that it had inherent authority to review actions of an administrative agency under the “arbitrary and capricious” standard alleged by Silva in his complaint and proceeded to review the Police Commission’s determination pursuant to that standard. As discussed above, the City did not properly raise on appeal the issue of whether judicial review of the Police Commission’s decision was available, thereby precluding our review. Thus, for purposes of this appeal, we assume arguendo that the District Court had authority to review the Police Commission’s action pursuant to the “arbitrary and capricious” standard. Our review is confined to whether the court erred in determining that the Police Commission’s action was not “without reasonable basis” and, therefore, not arbitrary or capricious.

Webster’s Ninth New Collegiate Dictionary defines “arbitrary” to mean “existing or coming about seemingly at random or by chance or as a capricious and unreasonable act of will;” similarly, “capricious” is defined as “characterized by a sudden, impulsive and seemingly unmotivated notion or action.” Thus, a review by a district court or this Court of an action under the “arbitrary and capricious” standard does not permit a reversal merely because the record contains inconsistent evidence or evidence which might support a different result. Rather, the decision being challenged must appear to be random, unreasonable or seemingly unmotivated, based on the existing record. Like the District Court, we cannot reach such a conclusion regarding the Police Commission’s determination to make Silva’s disability retirement benefits effective June 21,1990.

Silva was originally injured on the job in January, 1989. His first application for disability retirement benefits, in March 1989, was denied. Medical evidence at the time indicated that Silva would be able to return to work. In August, 1989, medical evidence indicated that Silva was able to return to work on a gradual basis at that time. The first medical statement that Silva would not be able to return to his position as a police officer was received by the City on June 21, 1990. While Dr. Mahnke also indicated in that statement that he thought Silva had been disabled from working as a police officer from the date of the injury in January 1989, that statement conflicted with the medical evidence noted above covering much of that period.

We cannot conclude, on the basis of this record, that the Police Commission’s decision to make Silva’s disability retirement benefits effective on the date the City received the Mahnke letter, and its refusal to make the benefits effective at any earlier time, was arbitrary and capricious. Substantial evidence exists to support the decision and, while other decisions also may have been appropriate, we cannot conclude as a matter of law that the decision is random, seemingly unmotivated or unreasonable based on the record before the Police Commission, the District Court and this Court. The District Court did not err.

AFFIRMED.

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


author: JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF ANNA RUTH SCOFFIELD, Petitioner and Respondent, and LINDSEY DENNIS SCOFFIELD, Respondent and Appellant.
    No. 92-382.
    Submitted on Briefs November 19, 1992.
    Decided May 18, 1993.
    50 St.Rep. 560.
    852 P.2d 664.
    258 Mont. 337.

      See C.J.S. Divorce § 547.
    For Respondent and Appellant: Vincent J. Kozakiewicz, Dillon.
    For Petitioner and Respondent: John Warren, Schulz, Davis & Warren, Dillon.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Lindsey Scoffield appeals from a supplemental decree of dissolution entered in the Fifth Judicial District Court, State of Montana, on March 20,1992. Lindsey contends that the District Court abused its discretion when it ordered him to assume all marital debts, including debts incurred by his spouse on behalf of her children from a prior marriage. Additionally, Lindsey asserts that the court erred when it denied his request to modify the allocation of proceeds from the sale of the parties’ cattle. We affirm.

The issues on appeal are:

1. Did the District Court abuse its discretion when it required appellant to assume all marital debts, including debts incurred by respondent on behalf of her children from a prior marriage?

2. Did the District Court err when it denied appellant’s request to modify the allocation of proceeds from the sale of the parties’ cattle?

Anna Ruth Scoffield, age 32, and Lindsey Dennis Scoffield, age 31, were married in Abilene, Texas, on March 2, 1985. There were no children born of this marriage, although Anna has two children from a previous marriage.

On March 13, 1991, Anna filed a petition to have the parties’ marriage dissolved. A dissolution proceeding was held on May 16, 1991. At the proceeding, Lindsey expressly agreed to assume all marital debts in exchange for the court’s denial of maintenance and attorney fees to Anna.

On July 1, 1991, the District Court entered its Findings of Fact, Conclusions of Law, and Decree of Dissolution. The court ordered the parties to equally divide their marital property. Additionally, the court ordered Lindsey to assume and pay all existing marital debts, and denied Anna’s request for maintenance and attorney fees. Finally, the court directed the parties to sell the cattle they owned and to divide the proceeds equally.

In August 1991, the parties entered into an arrangement concerning the cattle that differed from the July 1, 1991, dissolution decree. Rather than sell the cattle and divide the proceeds equally, as required by the decree, the parties agreed that Lindsey would pay Anna $4600 for her interest in the cattle. Lindsey paid Anna $3000 in cash, and delivered a $1600 promissory note, due on April 1, 1992. On January 10, 1992, Lindsey sold the cattle to a third party; however, he did not recover the amount per head that he anticipated.

During the year following the July 1,1991, decree, Lindsey refused to pay the majority of the parties’ existing marital debts. Anna responded by moving that the District Court find Lindsey in contempt. On March 6, 1992, the court held a hearing on the contempt motion. During the hearing, Lindsey made two arguments to the District Court concerning the marital property division.

First, Lindsey acknowledged that he agreed to assume the marital debts; however, he asserted that he should not have to pay the debts incurred by Anna on behalf of her children from her previous marriage because they were not marital debts.

Second, Lindsey requested the court to modify the allocation of the cattle proceeds in light of the actual sale price of the cattle. He reminded the court that the dissolution decree required an equal division of cattle proceeds; and he explained to the court that as a result of a contract concerning the cattle that he made with Anna subsequent to the decree, he received less than 50 percent of the cattle proceeds.

On March 20, 1992, the District Court amended and supplemented the July 1, 1991, dissolution decree. In the supplemental decree, the court entered a judgment against Lindsey for $1019.16, which represented the amount of marital debts. The court specifically listed the accounts Lindsey was obligated to assume and limited those accounts to debts incurred as of May 16,1991, the date of the parties’ dissolution proceeding. These accounts included debts incurred by Anna on behalf of her children from a prior marriage. The court stayed the execution of the judgment upon the condition that Lindsey pay to Anna monthly installments until the judgment of $1019.16 is paid in full.

In the March 20, 1992, order, the court also denied Lindsey’s request to modify the allocation of proceeds from the sale of the cattle. The court concluded that the parties were bound by their own agreement regarding the value of the cattle. Lindsey appeals from the March 20,1992, order.

On appeal, Lindsey contends that (1) the court abused its discretion when it required Lindsey to assume responsibility for debts incurred by Arma on behalf of her children from a prior marriage; and (2) the court erred when it refused to modify the allocation of proceeds, in light of the actual sales price of the cattle.

I

Did the District Court abuse its discretion when it required appellant to assume all marital debts, including debts incurred by respondent on behalf of her children from a prior marriage?

Lindsey acknowledges on appeal that he expressly agreed to assume all marital debts; however, he contends that the District Court abused its discretion when it required him to assume the debts incurred by Anna on behalf of her children from a prior marriage. Lindsey asserts that debts incurred on behalf of a spouse’s children from a previous marriage are not marital debts.

Because Lindsey expressly agreed to assume “all of the marital debts” in exchange for the court’s denial of maintenance and attorney fees to Anna, our analysis need not focus on whether Lindsey is statutorily and/or legally obligated to assume the debts incurred by his spouse on behalf of her children from a prior marriage. Nor is it necessary to ascertain for whose benefit those debts were incurred. For purposes of this appeal, we limit our analysis to whether the debts at issue are “marital debts.” If they are, then Lindsey is obligated by his own agreement to pay for them.

The Montana Marriage and Divorce Act, §§ 40-1-101 to 40-4-225, MCA, neither defines nor refers to the term “marital debt.” Moreover, few Montana cases, if any, specifically define “marital debt.” Yet a definition of “marital debt” is essential in a dissolution proceeding because in order for trial courts to “equitably apportion between the parties the property and assets,” as courts are statutorily required to do by § 40-4-202, MCA, courts must first ascertain the parties’ assets and liabilities prior to apportionment. In re Marriage of Dirnberger (1989), 237 Mont 398, 401, 773 P.2d 330, 332. Courts must know the definitional parameters of the term “marital debt” so that courts can make fair marital property divisions. Only by knowing what to include as “marital debt,” before balancing a parties’ assets and liabilities, can a court make a fair marital property apportionment.

Montana is not alone in its lack of a definition for “marital debt.” Other states have acknowledged that the term “marital debt” is not defined in their state code or in court opinions, although the word appears regularly in dissolution documents. The Missouri Court of Appeals explains in the case In re Marriage of Welch (Mo. App. 1990), 795 S.W.2d 640, 642:

In the debt oriented society now prevailing, the term “marital debts” is found in nearly every dissolution case filed. The term is found in the pleadings, separation agreements, court orders and judgments, and in the appellate court decisions. Yet, the term “marital debt” never appears in the “Dissolution of Marriage Act,” § 452.300, et seq., and certainly is never defined.

Although the Missouri Revised Statutes do not define the term “marital debt,” they do define its converse, “marital property.” In Welch, the Missouri Court of Appeals relied on the statutory definition of “marital property” as a helpful starting point for defining “marital debt.” According to the Court of Appeals, “ ‘[mjarital property1 is ‘all property acquired by either spouse subsequent to the marriage ....’” Welch, 795 S.W.2d at 643 (interpreting Missouri Revised Statutes, § 452.330.2). The Court of Appeals held that “it follows, therefore, that ‘marital debt’ is ordinarily ‘debt incurred subsequent to the marriage.’ ” Welch, 795 S.W.2d at 643.

Although Montana’s statutory definition of marital property is broader than Missouri’s, it also includes property acquired by either party during the marriage. See § 40-4-202, MCA. Since the definition for marital property in Montana includes all property acquired by either party during the marriage, it follows, therefore, that “marital debt” may be defined as all debt incurred by either party during the marriage.

The disputed debts in this case were medical debts incurred on behalf of Anna’s children. They were incurred while Lindsey and Anna were married. Specifically, they were incurred during 1990 and in the spring of 1991, which was subsequent to the date of Anna and Lindseys marriage on March 2,1985, and prior to May 16,1991, the date of the parties’ marriage dissolution. Pursuant to our definition that marital debt is all debt incurred by either party during the marriage, we conclude that the medical debts incurred by Anna on behalf of her children during the course of the parties’ marriage are marital debts.

Because Lindsey expressly agreed to assume all marital debts, and the court accepted Lindseys promise in exchange for the denial of maintenance and attorney fees to Anna, Lindsey is obligated to pay for all marital debts, including the debts incurred by Anna on behalf of her children from a prior marriage.

When reviewing a division of marital property case, the standard of review employed by this Court is whether the lower court abused its discretion when it fashioned the marital property distribution. In re Marriage of Danelson (1992), 253 Mont. 310, 317, 833 P.2d 215, 220. The lower court is obligated to seek a fair marital property division using reasonable judgment and common sense. Danelson, 833 P.2d at 220. When a District Court judgment is based upon substantial credible evidence, this Court will not alter that judgment unless there is a clear abuse of discretion. Dirnberger (1989), 773 P.2d at 332.

We conclude that the lower court exercised reasonable judgment when it balanced the economic consequences of Lindseys assumption of all marital debts against the economic burden of maintenance and attorney fees. Therefore, we conclude that the court did not abuse its discretion when it ordered Lindsey to assume all marital debts.

II

Did the District Court err when it denied appellant’s request to modify the allocation of proceeds from the sale of the parties’ cattle?

Lindsey asserts that as a result of the actual sales price of the cattle, he received less than 50 percent of the cattle proceeds; and that this result was in contravention of the court’s order to equally divide the proceeds. On appeal, Lindsey contends that the District Court erred when it denied his request to modify the allocation of cattle proceeds. Contrary to Lindsey’s assertion, we find no abuse of court discretion.

Lindsey relies on In re Marriage of Berthiaume (1977), 173 Mont. 421, 567 P.2d 1388. In Berthiaume, we held that a trial court abuses its discretion when it makes a finding that property should be divided equally and then subsequently makes a disparate award. However, unlike the situation in Berthiaume, where the court acted in contravention of its findings, the District Court in the present case did not act contrary to its finding that the parties should divide the cattle proceeds equally. The court ordered the parties to sell the cattle and equally divide the proceeds. It was Lindsey and Anna who devised their own means for accomplishing their obligation to sell and equally divide the cattle proceeds.

Parties are free to contract with one another, and Lindsey and Anna entered into a valid contract regarding the cattle. When Lindsey requested the lower court to modify the allocation of cattle proceeds in light of the actual sales price of the cattle, he was, in effect, asking the court to invalidate the parties’ contract. This Court has held that a party to an agreement which has been performed for some length of time is estopped to deny its validity. In re Marriage of Jensen (1986), 223 Mont. 434, 727 P.2d 512. Therefore, we conclude that the lower court did not err when it bound the parties to their own agreement and refused to modify the allocation of proceeds.

Lindsey and Arma satisfied their obligation under the decree to sell the cattle and equally divide the proceeds when they agreed to have Lindsey buy out Anna’s interest before selling the cattle to a third party. The fact that Lindsey paid Anna for more than 50 percent of the actual value of the cattle was a result of his own agreement with his wife, not the court’s decree. Therefore, we conclude that the District Court did not abuse its discretion when it refused to amend the allocation of cattle proceeds. We affirm the District Court decision.

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


text:
    IN RE THE MARRIAGE OF KENNETH J. ALPERT, Petitioner and Appellant, and TERRI A. ALPERT, n/k/a TERRI A. HAMELINE, Respondent and Respondent.
    No. 92-397.
    Submitted on Briefs December 3, 1992.
    Decided May 18, 1993.
    50 St.Rep. 564.
    852 P.2d 669.
    258 Mont. 344.

      See C.J.S. Divorce § 611.
    For Petitioner and Appellant: Judith A. Loring, Stevensville.
    For Respondent and Respondent: Lori Ballinger, Missoula.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Appellant Kenneth J. Alpert appeals from an order of the Fourth Judicial District Court, Ravalli County, entered on July 24, 1992, which modified the parties’ original divorce decree in regard to visitation rights and denied an award of attorney fees. We reverse.

The dispositive issue on appeal is whether the District Court had jurisdiction under the Uniform Child Custody Jurisdiction Act to hear and determine respondent Terri Hameline’s motion for visitation rights.

Kenneth and Terri’s ten-year marriage was dissolved by order of the Fourth Judicial District Court on January 17, 1990. At the time of the dissolution, the parties lived in Ravalli County and had two minor children — Seth, who was nine years old, and Hannah, who was seven years old. The divorce decree incorporated a separation agreement which gave sole custody of the children to Kenneth and reasonable visitation rights to Terri. In lieu of defining actual times and periods of visitation in the agreement, the parties agreed to mutually resolve these details.

In December 1990, Kenneth and the children moved from Montana to the state of Texas. Although Kenneth did not file a written notice with the court of his intent to leave Montana, he gave Terri more than 30 days oral notice prior to moving. The adequacy of that notice is not an issue on appeal. Since that time, the children have had no significant contacts with Montana. They have attended school in Texas, have seen medical and day care providers in that state, and all significant information concerning the children’s care, well-being, and personal relationships is found in Texas.

Terri filed a motion with the District Court on May 26, 1992, in which she requested the court to specify her summer visitation rights because she alleged that Kenneth was unreasonably restricting her opportunities to visit the children. Kenneth objected on the grounds that the Montana court lacked jurisdiction and that the visitation which was requested by Terri was not in the children’s best interests. He also requested an award of attorney fees.

The court issued its Findings, Conclusions, and Order on July 24, 1992. Since the children were no longer residents of Montana and had no significant contacts here since moving to Texas, the court determined that it should not accept further or continuing jurisdiction over any issues concerning the children with the exception of visitation rights. In regard to the visitation issue, the court concluded that it would be in the best interests of the children to specifically define Terri’s visitation rights. Consequently, Terri was awarded visitation for a period of 28 days during the summer of 1992 and 45 days each summer thereafter. Terri was ordered to pay all costs incurred in bringing the children to Montana, and Kenneth was ordered to cover the costs of returning the children to Texas. Neither party was awarded attorney fees. On appeal, Kenneth contends that the court was without jurisdiction to render this order and that he was entitled to an award of attorney fees under the terms of the couple’s separation agreement.

Kenneth’s jurisdictional challenge is based on Montana’s version of the Uniform Child Custody Jurisdiction Act (UCCJA), found at §§ 40-7-101 through -125, MCA. The stated purpose of the UCCJA is to avoid the jurisdictional conflicts that arise in the enforcement and modification of custody decrees, and to assure that any litigation involving minor children occurs in the state where the child has the closest connection and where significant evidence concerning the child’s care, protection, training, and personal relationships is most readily available. Section 40-7-102, MCA. Under § 40-7-103(2), MCA, visitation rights are specifically included in the definition of matters encompassed by a custody proceeding.

Kenneth contends that under the UCCJA the District Court was required to decline jurisdiction in favor of a Texas forum because the court’s visitation order amounted to a modification of the original custody decree, and therefore, was a custody proceeding. Terri, however, counters that the court merely clarified her visitation rights and this was not a modification of the original decree. Therefore, Terri claims that the provisions of the UCCJA did not bar the court from ruling on her motion.

We disagree with the position set forth by Terri and hold that, under the UCCJA, the court did not have subject matter jurisdiction to enter its visitation order.

The District Court correctly concluded that “it should not accept further or continuing jurisdiction over any issues concerning the children.” The relevant statute which dictates this conclusion is § 40-7-104, MCA, which sets forth the UCCJA’s jurisdictional requirements by incorporating the provisions of § 40-4-211, MCA. Before assuming jurisdiction in a custody proceeding which, by statute, includes matters dealing with visitation rights, a district court must first determine that one of the four disjunctive requirements of § 40-4-211(1), MCA, is satisfied. In re Marriage of Lance (1984), 213 Mont. 182, 690 P.2d 979. In this instance, none of these jurisdictional requirements are met.

In In re Marriage of Harper (1988), 235 Mont. 41, 46, 764 P.2d 1283, 1286, we held that “the distinction between modification and enforcement of custody” for purposes of applying the UCCJA is “superficial” and that “[preserving such a distinction would defeat the purposes set out in § 40-7-102, MCA.” We conclude that to distinguish between a “modification” and “clarification” under the facts in this case would be equally superficial. In this case, the court’s order altered the rights of the parties beyond that originally contemplated when the visitation provisions were left unspecified, and thus, modified those rights.

We are not holding that Terri’s visitation rights should be left unspecified or that her allegations of interference by Kenneth should not be addressed. It is not uncommon in situations like this, when one or both parties relocate, that custody or visitation provisions need to be clearly defined or modified. See, e.g., In re Marriage of Bolton (1984), 212 Mont. 212, 690 P.2d 401; In re Marriage of Sanderson (1981), 191 Mont. 316, 623 P.2d 1388. But it must be a court of competent jurisdiction to enter a judgment which alters the rights of the parties or imposes specific duties and obligations. In this instance, that court is not in Montana.

Kenneth also contends that, in accordance with the parties’ 1990 separation agreement, he is entitled to an award of attorney fees and costs if the court’s order is vacated. The pertinent provision of the agreement, which was approved by the court, provides as follows:

Should any action be commenced to enforce, modify, or interpret any provisions contained herein, the Court, as a cost of suit, shall award a reasonable attorney’s fee to the successful party.

Although we have determined that there was no subject matter jurisdiction to hear Terri’s motion for visitation, we note that the court does have personal jurisdiction over the parties by virtue of their appearances in this proceeding. Therefore, in light of our holding, we remand this case for a determination by the District Court of whether the above-mentioned provision of the separation agreement contemplated an award of attorney fees in the situation presented here.

The order of the District Court is vacated and this case remanded for a determination on the issue of attorney fees.

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


author: JUSTICE WEBER JUSTICE McDONOUGH

text:
    DAVID DALE, Claimant and Respondent, v. TRADE STREET, INC. and STATE COMPENSATION MUTUAL INSURANCE FUND, Employer, Defendant and Appellant.
    No. 92-114.
    Submitted on Briefs February 18, 1993.
    As Changed on Denial of Rehearing July 14, 1993.
    Decided April 1, 1993.
    50 St.Rep. 359.
    854 P.2d 828.
    258 Mont. 349.

      See C.J.S. Workmen’s Compensation § 231.
    For Defendant and Appellant: Laurence Hubbard, State Compensation Mutual Insurance Fund, Helena.
    For Claimant and Respondent: Thomas C. Bulman, Missoula.
    For Amicus Curiae: Oliver H. Goe, Helena, for Montana Motor Carriers Ass’n, Inc.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from the Worker’s Compensation Court of a judgment concluding that the claimant, David Dale, was injured during the course and scope of his employment. We reverse.

There are three issues on appeal:

1. Did the Worker’s Compensation Court err in determining that David Dale was injured in the course and scope of his employment?

2. Did the Worker’s Compensation Court correctly apply § 39-71-407(3), MCA?

3. Did the Worker’s Compensation Court err in failing to assess costs against the appellant?

David Dale (Dale) was a long haul trucker for Trade Street Inc. As part of his employment, he left Missoula, Montana on March 20,1991 and picked up a load of lumber at Townsend, Montana to be delivered by March 25, 1991 in Mount Clemens, Michigan. He then drove to Billings, Montana where he stayed at his sister’s home for two nights and a day.

On March 22,1991, Dale drove to the Flying J Truck Stop near Miles City, where his brother had previously arranged to meet him. Dale left the truck at the truck stop and rode into Miles City in his brother’s truck. It is difficult to tell what happened thereafter because neither Dale nor his brother, Lester “Buddy” Dale Jr. (Buddy), remember what occurred between 3:30 p.m. that afternoon and 9:30 p.m. that evening when they were involved in a single car accident. The accident occurred approximately one mile from the Flying J Truck Stop on the only road from Miles City to the Flying J Truck Stop.

Buddy, the driver of the vehicle, was cited at the accident for driving under the influence and the claimants’s blood alcohol content (BAC) was measured at 0.14. Other facts will be presented as necessary in the following portion of the opinion.

“Our standard for reviewing a decision of the Workers’ Compensation Court is to determine if there is substantial evidence to support the findings and conclusions of that court. Where there is substantial evidence to support the Workers’ Compensation Court, this Court cannot overturn the decision.” Garcia v. State Comp. Mut. Ins. Fund (1992), 253 Mont. 196, 198, 832 P.2d 770, 771-772. When the question is one of law or how particular findings of fact apply to the law, our scope is not so limited and we remain free to reach our own conclusions. Wassberg v. Anaconda Copper Co. (1985), 215 Mont. 309, 697 P.2d 909.

Appellant, State Compensation Mutual Insurance Fund (State Fund) argues that Dale had deviated from his employment at the time of the accident under consideration. Dale contends that the Workers’ Compensation Court had substantial evidence from which to conclude that Dale was injured within the course and scope of his employment.

In 1987, the legislature amended § 39-71-407, MCA, to codify exceptions to the general workers’ compensation rule that actions occurring when employees are going to or coming from work are not within the course and scope of their employment. This statute provides in pertinent part:

Liability of insurers - limitations. (1) Every insurer is liable for the payment of compensation, in the manner and to the extent hereinafter provided, to an employee of an employer it insures who receives an injury arising out of and in the course of his employment or, in the case of his death from such injury, to his beneficiaries, if any.
(3) An employee who suffers an injury or dies while traveling is not covered by this chapter unless:
(a) (i) the employer furnishes the transportation or the employee receives reimbursement from the employer for costs of travel, gas, oil, or lodging as a part of the employee’s benefits or employment agreement; and
(ii) the travel is necessitated by and on behalf of the employer as an integral part or condition of the employment; or
(b) the travel is required by the employer as part of the employee’s job duties. ...

Section 39-71-407, MCA.

We will discuss the 1987 statutory additions in our discussion of Issue II below. However, our determination of the controlling issue in this case is discussed in Issue I below and is based on existing case law interpretations of the course and scope of employment.

I.

Did the Workers’ Compensation Court err in determining that claimant was injured during the course and scope of his employment?

Axiomatic to a determination of workers’ compensation coverage is that the injured worker be injured in the course and scope of his employment. Section 39-71-407(1), MCA. It is well-established in Montana that traveling employees are not covered 24 hours a day, without limitation, regardless of the conduct or activity in which they are involved. See, e.g., Correa v. Rexroat Tile (1985), 217 Mont. 126, 703 P.2d 160. The employee must remain in the course and scope of employment while traveling in order for the injury to be compensable. Correa, at 129-31, 703 P.2d at 163.

Here, the Workers’ Compensation Court concluded that “the dis-positive issue was that the employee was compensated for the time, was on his employer’s business in being there and had not deviated from the employer’s business.” The Workers’ Compensation Court also concluded that Dale was considered to be within the course and scope of his employment because he was hauling a load of lumber en route from Townsend, Montana to Mount Clemens, Michigan. Although the load was not due until March 25, 1991, Dale had picked the load up in Townsend on March 20, 1991.

State Fund contends that prior case law does not support the Workers’ Compensation Court’s conclusion. It cites Ogren v. Bitterroot Motors, Inc. (1986), 222 Mont. 515, 723 P.2d 944, as support for its contention that Dale was not within the coruse and scope of his employment when he was injured. Ogren declares the factors to be considered in determining whether a deviation from the scope of employment is substantial enough to take an employee out of the employment context: (1) the amount of time taken up by the deviation; (2) whether the deviation increases the risk of injury; (3) the extent of the deviation in terms of geography; and (4) the degree to which the deviation caused the injury. Ogren, at 521-22, 723 P.2d at 948.

In Ogren, Erik Ogren of Bitterroot Motors flew a co-worker from Missoula to Great Falls in the company plane. From there, he proceeded to Sheridan, Wyoming to pick up his daughter from a beauty pageant and bring her home to Missoula. Ogren had trouble with the plane while in Wyoming and rented a car to complete the journey. He and his daughter were killed in an automobile accident caused when Ogren fell asleep and lost control of the vehicle while driving to Missoula. Ogren, at 517-19, 723 P.2d at 945-46.

The Workers’ Compensation Court concluded that Ogren was not within the course and scope of his employment. On appeal, this Court determined that the trip from Great Falls to Sheridan was personal, was not a minor deviation and did not fall within the exception to the “going and coming” rule. Ogren, at 519-21, 723 P.2d at 947. In applying the deviation factors to determine that the deviation was substantial, we concluded that the deviation occurred over a period of 11 hours which was much longer than a round trip from Missoula to Great Falls, the business-related portion of his trip. Also, the deviation spanned 744 miles as compared to 336 miles for the business aspect of the trip. “This is clearly a case where the personal deviation completely dwarfed the business purpose.” Ogren, at 522-24, 723 P.2d at 949. As for the two remaining factors, the trip to Sheridan and then on toward Missoula not only increased the risk of injury, it was the main reason the deaths occurred. We also cited with favor a quote from Calloway v. State Workmen’s Comp. (1980), 165 W.Va. 432, 268 S.E.2d 132, as follows:

In the case of a major deviation from the business purpose most courts will bar compensation recovery on the theory that the deviation is so substantial that the employee must be deemed to have abandoned any business purpose and consequently cannot recover for injuries received, even though he has ceased the deviation and is returning to the business route or purpose.

Ogren, 222 Mont. at 521-22, 723 P.2d at 948.

The Workers’ Compensation Court considered the facts of the present case to be similar to Gordon v. H.C. Smith Const. Co. (1980), 188 Mont. 166, 612 P.2d 668. We do not agree. Gordon, an electrician who lived in Butte but was working near Lewistown, maintained a temporary residence at the Brand T Motel in Lewistown. On May 1, 1978, Gordon worked a full day at the work site which was about 24 miles northeast of Denton, Montana. Shortly after work, Gordon met some of his coworkers at the Denton bar for beer and pool. They left the bar at approximately 10:00 p.m. and drove toward Stanford, where Gordon customarily stayed, rather than returning to Lewis-town. Gordon was a passenger in a truck driven by a co-worker who had his quarters in Stanford. A few minutes after leaving the Denton Bar, the truck went off the road and Gordon was killed.

Gordon’s employment contract provided for $22 daily in subsistence pay when working more than 54 miles from the home office. In concluding that his compensation for travel qualified the claimant for workers’ compensation coverage, we reasoned as follows:

Because the union contract singles out for special consideration a travel allowance and it is paid as an incentive to get men onto jobs and results in a reasonable benefit to an employer, then while the employee is “traveling” enroute to or from work, any injury is within the exception and arises out of and in the course and scope of employment.

Gordon, at 171-73, 612 P.2d at 671.

In this case, although Dale received a subsistence allowance and was paid for each mile he traveled, he was not paid for traveling to or from work. He was paid for the actual miles traveled during work. Unlike Gordon, it was not an incentive to get him to his place of employment. Also unlike Gordon, Dale’s subsistence pay was not an incentive to get him to work in a remote location. We conclude that the Workers’ Compensation Court was incorrect in holding that Gordon was controlling here.

As for the alcohol consumption, we previously stated that the alcohol factor alone does not establish a deviation from the course and scope of employment. Gordon, at 173-75, 612 R2d at 672. See also Steffes v. 93 Leasing Co. (1978), 177 Mont. 83, 580 P.2d 450; and Parker v. Glacier Park, Inc. (1991), 249 Mont. 225, 815 P.2d 583. In Parker, we found no deviation from the course and scope of employment, stating:

We refuse to overrule thirteen years of precedent to hold that an employee who may be under the influence of alcohol, without having abandoned the course of his employment, is precluded from recovering under the workers’ compensation system.

Parker, at_, 815 P.2d at 586. The claimant in Parker had not abandoned the course and scope of his employment. Although he consumed several beers, he had done so while also working on employment-related tasks after driving to another work location. He wrecked his car while driving back to the first work location to speak with another employee about business-related matters. There was no evidence that the claimant was acting outside the scope of his employment at that time. Parker, at 229-30, 815 P.2d at 586.

In this case, however, there is no evidence that Dale was attending to employment-related matters. In Courser v. Darby School Dist. #1 (1984), 214 Mont. 13, 16-17, 692 P.2d 417, 419, we discussed a four-part test to determine if an injury was work related: (1) whether the activity was undertaken at the employer’s request, (2) whether the employer directly or indirectly compelled the employee’s attendance at the activity, (3) whether the employer controlled or participated in the activity, and (4) whether both employer and employee mutually benefitted from the employee’s attendance at the activity. Dale’s actions do not fit within any of these factors. For an injury received while traveling, there must be some identifiable benefit to the employer. Steffes, 177 Mont. at 87-88, 580 P.2d at 453. We conclude that Dale was injured during a six-hour period when he had temporarily abandoned the course of his employment and during which he attended to no employment-related matters. During the deviation from his scheduled route, the continuity ofD ale’s employment here was severed and remained so as he had not returned to the point of deviation from the path of duty.

Although the employer permitted its drivers to visit relatives along the route, there is no evidence that visits such as Dale’s Miles City trip were contemplated. The employer’s policy manual states that the equipment is to be routed according to a computer map and no deviations are allowed for off-route usage and that equipment is not to be used for any reason as a personal conveyance without prior authorization. Dale’s supervisor testified that time spent “goofing off’ is considered “off-duty” or personal time of the driver. Dale also testified that he considered himself to be “off-duty” while he visited his sister. Dale testified that, as far as he could remember, the sole purpose for the Miles City stop was to visit his brother. During this “off-duty” time, he consumed alcohol with his brother.

Dale’s visit to his brother was a substantial deviation from Dale’s employment. We reach the conclusion that there was a substantial deviation in Miles City by applying the Ogren factors to the facts of this case. The first Ogren factor is the amount of time taken up by the deviation. Although the time spent here was several hours less than in Ogren, when considered with the second factor, whether the deviation increases the risk of injury, it becomes substantial. Six hours of drinking with a companion and then having that companion drive back six miles to the location of the claimant’s truck greatly increased the risk of injury. Similarly, the third factor, the extent of the deviation in terms of geography, becomes accentuated here, although it was a relatively small deviation when compared with that in Ogren. When considered in terms of the activity claimant engaged in, however, it, too, becomes substantial. The fourth factor, the degree to which the deviation caused the injury, is also significant here. The deviation was the cause of the injury. The Workers’ Compensation Court deemed the geographical distance to be of paramount importance here as in Ogren. However, other factors in this case outweigh the significance of geographical distance.

Applying the Ogren factors to this case, we conclude that Dale’s injury occurred while he was engaged in a substantial deviation from his employment. We conclude, therefore, that the Workers’ Compensation Court erroneously held that Dale’s acts were within the course and scope of his employment.

We hold that Dale was not injured within the course and scope of his employment.

II.

Did the Workers’ Compensation Court correctly apply § 39-71-407(3), MCA?

Sections 39-71-407(2)-(4), MCA, were added by the legislature in 1987. Section 39-71-407(1), MCA, remained intact. Section 1-2-101, MCA, requires the courts to construe the several provisions of a statute to give effect to all, if possible.

There is no evidence that the legislature intended to provide that employees would be covered under § 39-71-407(3) even though they did not meet the § 407(1) requirement that the injury arise in the course of employment. Nor is there evidence that the legislature intended that traveling employees be covered 24 hours a day, no matter what they are doing, how they are doing it, or how far removed the activity engaged in by the employee is from the employer’s business purpose.

In applying § 39-71-407(3), MCA, to the present action, the Workers’ Compensation Court judge concluded that:

It is undisputed in this case that the claimant was driving his employer’s truck when he went to Miles City, thus he fits within section 39-71-407(a)(i). Additionally, the payment of “subsistence” money clearly encompasses meals and lodging expenses. A worker cannot reasonably be expected to eat and sleep in his truck. Whether claimant was in Miles City to eat or not is unknown but what is known is that he was in Miles City, enroute to Michigan and clearly was there as a part of his job. It is also undisputed that driving was, not only a necessary, integral part of the job, but was the job itself, thus claimant satisfies (a)(ii) and (b). Since it is also undisputed that he was not injured as a result of his use of alcohol subsection (4) does not apply. (Emphasis in original.)

Section 407(3)(a)(i), MCA, states that workers are covered by employers if the employer furnishes the transportation or the employee receives reimbursement from the employer for travel costs as part of the benefits of an employee agreement. Dale was paid twenty one cents per mile driven, with six cents as “subsistence” pay. Transportation was provided for Dale by the employer and he received subsistence pay for meals, lodging and other travel costs as part of his employment. There is substantial evidence that Dale falls within § 39-71-407(3)(a)(i), MCA.

Dale contends that he also qualifies under § 407(3)(a)(ii) because travel is not only necessitated by and on behalf of the employer, and is not just integral to the employment, but it is the employment itself. He makes a similar argument under § 407(3)(b). Under both §§ 407(a)(ii) and (b), reference is made to “the travel” not “travel” in general. These sections refer to travel that is necessitated by and on behalf of the employer or required by the employer in order to carry out the job. The travel to Miles City was necessitated by and on behalf of the employer; the side trip to Miles City to visit the brother was not. The fact that the employer allowed visits to family members along the route does not transform such visits to travel contemplated by § 407(3). We conclude that § 39-71-407(3) does not require a change in the conclusion reached above in Issue I.

Our conclusion is not without consideration of the employee’s needs when travel is the nature of the job. Indeed, no one can argue that certain stops along the way are not essential for eating, sleeping and taking breaks. These stops benefit the employer as well as the employee. It is only when the employee substantially deviates from the employer’s business that he is not covered for injuries arising during the time which can reasonably be considered as the abandonment of the course of the employment. We conclude the Workers’ Compensation Court was incorrect in its application of § 39-71-407(3), MCA.

III.

Finally, Dale argues that the Workers’ Compensation Court should have assessed costs against State Fund under § 39-71-611, MCA. However, Dale did not cross-appeal this issue and therefore, this Court will not address the issue. “[T]he respondent must file a cross-appeal when seeking review of issues not raised by appellant.” Baldwin v. Orient Express Restaurant (1990), 242 Mont. 373, 377, 791 P.2d 49, 51.

Reversed.

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

JUSTICE McDONOUGH

dissenting:

I respectfully dissent.

The first issue is whether the Workers’ Compensation Court erred in determining that David Dale was injured in the scope and course of employment. The appellate scope of review is whether there is substantial evidence to support the findings and conclusions of the Workers’ Compensation Court. This is the same scope of review of a jury verdict. We have not adopted the broader clearly erroneous scope of review in workers’ compensation cases. The clearly erroneous scope of review is in essence the standard the Court by its decision is applying here.

The critical question is whether the claimant, an over the road truck driver, in leaving the rig and the truckstop, and going into Miles City proper and returning, made a substantial deviation from his employment. The action of the claimant here was a deviation. The ultimate fact question to be answered by a trial court is whether, under the facts, it was substantial. The burden of proof of a substantial deviation is on the employer. Steffes v. 93 Leasing Co., Inc. (1978), 177 Mont. 83, 89, 580 P.2d 450, 454.

First, claimant did not leave his route, which was between Townsend, Montana and Mt. Clemens, Michigan on Interstate 94. Miles City, Montana is on the route. The stop in Miles City was both personal and business. The employer was only interested in having the load delivered by a certain date. The driver is free to relax within such time period. There was no company policy against visiting relatives. Claimant was on his route and therefore within the employer’s policies. Eating, sleeping, resting and relaxation would be a proper dual purpose errand for a traveling trucker. Claimant’s use of alcohol was not the cause of injury. The above facts are substantial evidence for the Workers’ Compensation Court to determine the deviation to Miles City with his brother was not such a substantial deviation so as to sever his employment. There is also other substantial evidence to prove the contrary.

The Court, in its majority opinion, tries to distinguish the case of Gordon v. H.C. Smith Const. Co. (1980), 188 Mont. 166, 612 P.2d 668. The differences pointed out are splitting hairs without any meaningful distinction.

The Court also has discussed the four factors to be considered as set out in Ogren v. Bitterroot Motors, Inc. (1986), 222 Mont. 515, 522, 723 P.2d 944, 948. The claimant does well as to (1) and (3), but not as well as to (2) and (4). There is substantial evidence to support the fact finder what ever way it decides and this Court should not substitute its judgment as to the ultimate fact of whether there is a substantial deviation from employment.

I also would affirm the Workers’ Compensation Court in its construction of § 39-71-407(3), MCA.

JUSTICE HUNT concurs in the foregoing dissent.