text:
    IN RE THE MARRIAGE OF TERRI ANN BOYER, Petitioner and Appellant, and GARY GREG BOYER, Respondent and Respondent.
    No. 94-476.
    Submitted on Briefs June 29, 1995.
    Decided December 19, 1995.
    52 St.Rep. 1233.
    908 P.2d 665.
    274 Mont. 282.

      For Appellant: Leonard J. Haxby, Christine D. Somers, Butte.
    For Respondent: Respondent did not appear on appeal.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Terri Boyer (Terri) appeals an order of the Second Judicial District Court, Silver Bow County, which granted the motion of Respondent Gary Boyer (Gary) to modify the parties’ divorce decree, and denied Terri’s motion to find Gary in contempt of court for failing to abide by the dictates of the decree.

Affirmed in part, reversed in part, and remanded.

ISSUES

The following dispositive issues were raised on appeal:

1. Did the District Court err by modifying the custody ofthe parties’ two younger children?

2. Did the District Court err by awarding Gary liberal visitation or by permitting him to act as the children’s day-care provider?

3. Did the District Court err by refusing to hold Gary in contempt?

4. Did the District Court err by refusing to allow interest to be added to a $1,438.82 debt owed to Terri by Gary?

5. Did the District Court err by ordering Gary to repay the $1,438.82 debt at a rate equal to $7.50 per month?

FACTS

Terri and Gary were married in 1978 and divorced in 1992. They have two minor daughters, Natoshia and Tristan, and one minor son, Gage. The parties’ January, 1992 divorce decree gave sole custody of all the children to Terri, and gave Gary reasonable visitation. The decree provided that Gary would set up a $1,000 trust fund for each child using funds from the estate of his father. It further provided that Gary was to sell the family home and use the proceeds to pay off the parties’ medical and credit card debts.

In February, 1992, the parties stipulated to the amendment of the final decree. By that stipulation, Gary was granted unlimited visitation. The stipulation also set out the specific medical and credit card debts which were to be paid by Gary once the house was sold.

On June 1, 1993, Gary moved the District Court to modify the divorce decree. By his motion, Gary contended that his older daughter, Natoshia, resided with him and he consequently requested a change in the status of her custody. Gary’s motion explicitly limited the requested custody change to Natoshia only, and requested that Terri retain custody of Tristan and Gage.

On the same day, Terri moved the District Court to hold Gary in contempt for failing to sell the family home and pay off the couple’s debts, and for failing to set up the children’s trust funds, as ordered by the decree. Gary responded that the decree did not specify a deadline for either the sale of the house or the establishment of the trust funds, and that therefore he was not in contempt.

The District Court held hearings on both motions on June 30 and July 20, 1993. It appointed a Special Master to investigate and ordered him to submit his findings and conclusions to the District Court.

On April 11, 1994, the District Court issued its Findings of Fact, Conclusions of Law and Order which adopted the Special Master’s proposed findings and conclusions. It also incorporated modifications to the Special Master’s findings and conclusions which were requested by Gary through a “Notice of Respondent’s Request to Adopt the Special Master’s Findings of Fact, Conclusions of Law and Order with Modifications.”

In its order, the District Court specifically noted Terri’s failure to object to the Special Master’s proposed findings or to Gary’s requested modifications. However, the Special Master’s proposed findings and Gary’s “Notice of Respondent’s Request” to modify the same were filed with the District Court on April 15,1994, four days after the District Court had entered its final order in the matter.

Terri appeals from the District Court’s order. Gary did not appear in this appeal.

I

Did the District Court err by modifying the custody of the parties’ two younger children?

Terri first contends that the District Court erred by changing the custody of the two younger children from sole to joint. She claims that neither party formally moved for such a change and that the District Court lacked jurisdiction to alter the existing arrangements.

Section 40-4-219, MCA, provides:

The court may in its discretion modify a prior custody decree if it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or the child’s custodian and that the modification is necessary to the serve the best interest of the child and if it further finds that:

(a) the custodian agrees to the modification;

(b) the child has been integrated into the family of the petitioner with consent of the custodian;

(c) the child’s present environment endangers seriously the child’s physical, mental, moral, or emotional health and that the harm likely to be caused by a change in environment is outweighed by its advantages to the child;

(d) the child is 14 years of age or older and desires the modification;

(e) the custodian willfully and consistently:

(i) refuses to allow the child to have any contact with the noncustodial parent; or

(ii) attempts to frustrate or deny the noncustodial parent’s exercise of visitation rights;

(f) the custodial parent has changed or intends to change the child’s residence to another state.

In order to change an existing custody arrangement, the District Court must find changed circumstances as well as one or more of the factors listed in § 40-4-219(a)-(f), MCA. Such findings are a jurisdictional prerequisite for a change in custody and, without them, a district court may not modify a prior award of sole custody. In re Marriage of Johnson (1994), 266 Mont. 158, 879 P.2d 689; In re Marriage of Anderson (1989), 240 Mont. 316, 783 P.2d 1372; In re Marriage of Stephenson (1988), 230 Mont. 439, 750 P.2d 1073.

Terri apparently agreed to change the custody of Natoshia from sole to joint, but the record does not reflect that she agreed to such a change regarding Tristan and Gage. While the order in this case purports to change the custody of all the children from sole to joint, the District Court did not make the sort of findings which § 40-4-219, MCA, mandates. Without such findings, the court had no jurisdiction to modify the existing custody arrangements.

Furthermore, neither party by their pleadings raised the custody of Tristan and Gage as an issue. On the contrary, in his motion to change the custody of Natoshia, Gary specifically requested that Terri retain custody of both Tristan and Gage. Ajudgment is conclusive only so far as it determines matters which by the pleadings are put at issue. In re Marriage of DiPasquale (1986), 220 Mont. 497, 499, 716 P.2d 223, 225.

Because the issue of the custody of Tristan and Gage was not properly before the District Court, and because it failed to comply with the dictates of § 40-4-219, MCA, we hold that the District Court lacked jurisdiction to change the existing custody arrangements regarding the two younger children. Under the original divorce decree and later stipulation, Terri retains sole custody of Tristan and Gage, and Gary has the right to visitation.

II

Did the District Court err by allowing Gary liberal visitation or by permitting him to act as the children’s day-care provider?

Terri next contends that the District Court erred by granting Gary liberal visitation and by allowing him to act as the children’s day-care provider when he is not working.

The original divorce decree granted Gary “reasonable” rights to visitation, and the stipulation granted him an “unlimited” right to visit the children in their home in order to allow him to visit them “to the fullest extent possible.” While the stipulation contemplated long-distance visitation, as Terri and the children were then planning a move to California, nothing in it indicates that the visitation arrangements were to be different should Terri and the children return to Montana, as in fact they have. Therefore, by ordering that Gary is to have liberal visitation, the District Court was not modifying visitation, but merely clarifying and confirming that Gary is entitled to liberal visitation under the original terms of the stipulation.

Nevertheless, Terri contends that Gary should not enjoy liberal visitation with the younger children or be allowed to act as their day-care provider. She contends that he does not supervise them properly or feed them nutritiously, and notes that the two daughters do not get along. At the hearing, she also alleged sexual improprieties involving Gary and the children, which he emphatically denied.

The district court has broad power to address all problems concerning custody and visitation.

The standard of review for custody and visitation is whether substantial credible evidence supports the district court’s judgment. We will overturn a court’s custody or visitation decision only when the court’s findings and conclusions clearly demonstrate an abuse of discretion.

In re Marriage of Hunt (1994), 264 Mont. 159, 164, 870 P.2d 720, 723.

Further, this Court may not substitute its judgment for that of a district court in making a finding based to a large extent on credibility and weight of the evidence. Woolf v. Evans (1994), 264 Mont. 430, 872 P.2d 777. “[T]he trial court, having had the opportunity to observe the demeanor and judge the credibility of the witnesses, is in a better position to resolve conflicting factual testimony than is this Court. In re Marriage of Gerhart (1990), 245 Mont. 279, 800 P.2d 698.” In re Marriage of Newton (1992), 255 Mont. 463, 466, 844 P.2d 47, 49.

All the allegations Terri makes on appeal were properly made before the District Court, who heard testimony from both parties as well as several other witnesses. It then determined the credibility of the parties and witnesses, as well as the weight to be given to their testimony. The District Court found Gary to be an appropriate daycare provider for the children, and substantial credible evidence supports this finding, as well as the finding that Gary should receive liberal visitation. We will not substitute our judgment for that of the District Court, which had the opportunity to evaluate the evidence personally. Accordingly, the order of the District Court is affirmed regarding these issues.

Ill

Did the District Court err by refusing to hold Gary in contempt?

The original divorce decree provided that Gary would set up a trust fund of $1,000 for each child, using funds from the estate of his father. When he failed to establish the trust funds, Terri moved to have him held in contempt. The District Court denied her motion and declined to hold Gary in contempt. Terri claims this denial was error.

Unlike contempt orders in other types of cases, which are reviewable only by writ of certiorari, contempt orders in family law cases may be appealed. In re Marriage of Dreesbach (1994), 265 Mont. 216, 875 P.2d 1018. However, this Court’s review is limited to whether the district court acted within its jurisdiction and whether the evidence supports its finding. Dreesbach, 875 P.2d at 1023; In re Marriage of Sullivan (1993), 258 Mont. 531, 539-40, 853 P.2d 1194, 1200.

Terri does not assert that the District Court lacked jurisdiction. Instead, she attacks on evidentiary grounds its refusal to hold Gary in contempt. The decree specified that the trust funds would be funded from the estate of Gary’s father. Gary admitted that he had not set up the trust funds as required, but would do so upon the sale of the family home. He therefore admitted that he was in violation of the decree, and the District Court could justifiably have found him to be in contempt. However, the court instead ordered him to set up the trust funds within 90 days of the date of the order. It is the responsibility of the District Court to enforce its own orders, and the court has the discretion to grant extensions if it deems proper. Therefore, the District Court acted within its authority in denying Terri’s motion. Accordingly, the District Court’s refusal to hold Gary in contempt is affirmed.

IV

Did the District Court err by refusing to allow interest to be added to a $1,438.82 debt owed to Terri by Gary?

The original divorce decree provided that Gary would pay certain medical and credit card debts once the family home was sold. The stipulation set out specifically what amounts were owed, and to whom. Since Gary did not sell the house or pay the debts, Terri was forced to make partial payments to several parties in order to preserve her good credit history. Terri paid a total of $1,438.82 towards debts which were Gary’s responsibility pursuant to the decree. The District Court found that Gary did in fact owe this amount to Terri, but concluded that she, as a matter of law, was not entitled to receive interest since she had made the payments voluntarily.

We find this conclusion to be erroneous. Section 27-1-211, MCA, provides:

Every person who is entitled to recover damages certain or capable of being made certain by calculation and the right to recover which is vested in him upon a particular day is entitled also to recover interest thereon from that day except during such time as the debtor is prevented by law or by the act of the creditor from paying the debt.

Gary was required to pay certain debts on behalf of Terri, which he did not pay. Because of his non-payment, Terri risked damaging her credit rating and her ability to obtain continuing services from certain doctors. In order to prevent such a result, Terri paid part of the debts herself. Therefore, Gary now has an obligation to reimburse her, which he does not dispute.

Gary owes Terri damages in an amount which can be and has been determined by calculation. She is therefore entitled to interest pursuant to § 27-1-211, MCA, from the date that her right to recover vested. Her right to recover vested on the date she paid each debt and, in so doing, assumed the lender’s right to be repaid.

The fact that Terri paid part of the debts voluntarily cannot change this result. To clarify, her payments were not wholly voluntary; Terri felt compelled to pay in order to preserve her relationships with the doctors and creditors. In any case, § 27-1-211, MCA, extends to all parties who are entitled to recover damages, irrespective of how the damages were incurred.

Pursuant to § 27-1-211, MCA, we hold that Terri is entitled to interest on the debt owed to her, beginning on that date or dates that her right to be repaid vested. Accordingly, we reverse and remand this issue to the District Court for a factual determination of when Terri’s right to collect interest began.

V

Did the District Court err by ordering Gary to repay the $1,438.82 debt at a rate equal to $7.50 per month?

The Special Master’s proposed findings and conclusions in this case acknowledged the debt owed to Terri, and would have required Gary to repay her in one lump-sum upon the sale of the house. In his request to modify those findings and conclusions, Gary contended it would be “very difficult” for him to pay Terri a lump-sum payment, because the house had been sold “on a contract” and, after making the monthly mortgage payment, he was only receiving $7.50 per month.

In its final order, the District Court accepted Gary’s proposed modifications without requiring any showing of proof regarding the sale of the home or the equity payments Gary is receiving. In explaining its adoption of Gary’s proposed modifications, the court noted Terri’s failure to object to any of Gary’s proposals.

As noted above, however, the Special Master’s proposed findings and conclusions, along with Gary’s motion to modify them, were filed on April 15, 1994. This was four days after the filing of the District Court’s final judgment, which substantially incorporated both the proposed findings and Gary’s proposed modifications.

Terri alleges that she never objected to either document because she never saw them until after they were filed and the District Court’s final judgment was handed down. Nothing in the record contradicts this assertion. Terri alleges that it was an abuse of discretion for the District Court to allow Gary to repay her at the rate of $7.50 per month, and essentially penalize her for failing to object to documents she had never seen. We agree. At the current rate, it will take Gary sixteen years to pay off this debt. We therefore remand this issue for the factual determination of Gary’s ability to pay and for the institution of a reasonable payment schedule.

Affirmed in part, reversed in part and remanded to the District Court for further proceedings in accordance with this opinion.

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


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CLAYTON ANDREWS, Defendant and Appellant.
    No. 95-012.
    Submitted on Briefs November 2, 1995.
    Decided December 19, 1995.
    52 St.Rep. 1238.
    907 P.2d 967.
    274 Mont. 292.

      For Appellant: Gary E. Wilcox, Yellowstone County Public Defenders, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Carol Schmidt, Ass’t Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Marcia Good Sept, Deputy County Attorney, Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

Clayton Andrews (Andrews) was convicted by jury verdict of two counts of felony aggravated assault and sentenced to a ten-year term of imprisonment on each count, with the sentences to run concurrently. He appeals from the judgment and sentence entered by the Thirteenth Judicial District Court, Yellowstone County, on one count only. We reverse.

The issue on appeal is whether sufficient evidence supports the jury’s guilty verdict on Count I, the aggravated assault alleged to have occurred on or about March 2, 1993.

Andrews and Dawn Lamar (Lamar), have two daughters, Ashley and Brittany. Andrews cared for the children while Lamar worked her 4:00 a.m. to 2:00 p.m. shifts. Lamar cared for them while Andrews was at work, generally from 3:00 p.m. until 11:00 p.m.

Lamar did not notice any problems with Brittany when putting her to bed on March 1, 1993. As she left for work on March 2, she observed that Brittany was sleeping. Andrews called Lamar at work at approximately 7:00 that morning. He told her that Brittany had stopped breathing and that he needed Brittany’s doctor’s telephone number. Andrews also called 911 and an ambulance arrived soon thereafter. Richard Oberweiser, an emergency medical technician, examined Brittany. He informed Andrews that Brittany did not appear to be ill enough to require an ambulance to transport her to the hospital.

Lamar returned home within 20 minutes of Andrews’ call, by which time the ambulance had left the apartment. Lamar changed Brittany’s clothes because they had vomit on them and, immediately thereafter, she and Andrews took Brittany to see Dr. Lawrence A. Hemmer, Jr., a family practitioner who was Brittany’s regular doctor. Dr. Hemmer examined Brittany and determined that she was suffering from esophageal reflux; in everyday terminology, Brittany was “spitting up.” Dr. Hemmer prescribed Reglan to control the reflux.

Brittany’s condition worsened over the next few days and Lamar took her back to Dr. Hemmer on March 8. In Dr. Hemmer’s view, Brittany’s loss of 23 ounces in 6 days was very unusual. The weight loss, together with Brittany’s fever and lethargy, formed the basis for Dr. Hemmer’s decision to admit her to the hospital.

Dr. Hemmer also was concerned that Brittany had some type of infection, but he ruled out that possibility based on the results of various tests. Brittany became rehydrated and gained most of her weight back while she was in the hospital; she was discharged on March 11, 1993. Dr. Hemmer did not know at that time what caused Brittany to become ill. Two days later, Dr. Hemmer did a follow-up examination of Brittany and noted that she seemed to be doing better.

On March 14, 1993, Brittany was transported to the hospital by ambulance. Dr. John Patrick Sauer, a pediatrician with special training in the area of child abuse and neglect, examined her and, based on her symptoms and various test results, concluded that she had suffered a nonaccidental trauma and had shaken baby syndrome. He also concluded that shaken baby syndrome was the proper diagnosis for Brittany when she was first hospitalized on March 8. Dr. Hemmer agreed with Dr. Sauer in this regard, concluding that he had misinterpreted Brittany’s earlier symptoms and, as a result, had “missed” shaken baby syndrome.

In June of 1993, the State of Montana (State) charged Andrews with two counts of felony aggravated assault pursuant to § 45-5-202(1), MCA; the State alleged that the first assault occurred on or about March 2, 1993, and that the second occurred on or about March 14, 1993. Andrews pled not guilty to both counts. The case was tried to a jury which convicted Andrews of both counts of aggravated assault. The District Court sentenced Andrews to a ten-year term of imprisonment on each count, with the sentences to run concurrently.

Andrews appeals solely from his conviction on Count I. Accordingly, we limit our review to that charge, the aggravated assault of Brittany which allegedly occurred on or about March 2, 1993. Additional facts are set forth in the following discussion where necessary.

Does sufficient evidence support the jury’s guilty verdict on Count I, the aggravated assault alleged to have occurred on or about March 2, 1993?

Andrews argues on appeal that the State presented insufficient evidence to prove its case regarding the aggravated assault alleged to have occurred on or about March 2, 1993. While he presents several contentions in this regard, Andrews’ argument that there is insufficient evidence on the “serious bodily injur/’ element of the offense of aggravated assault is dispositive.

Our standard in reviewing the sufficiency of the evidence for a criminal conviction is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. State v. Mergenthaler (1994), 263 Mont. 198, 203, 868 P.2d 560, 562 (citing State v. McLain (1991), 249 Mont. 242, 815 P.2d 147, 150).

Section 45-5-202(1), MCA, provides that “[a] person commits the offense of aggravated assault if he purposely or knowingly causes serious bodily injury to another.” As charged in this case, serious bodily injury is statutorily defined as “bodily injury which creates a substantial risk of death or which causes ... protracted loss or impairment of the function or process of any bodily member or organ.” Section 45-2-101(59), MCA (1991).

The evidence from which a jury could find that Andrews caused mere bodily injury to Brittany by shaking her on March 2, 1993, is overwhelming. Brittany’s condition deteriorated after Dr. Hemmer examined her on March 2 and, as a result, she was hospitalized March 8 through 11 due to severe dehydration, weight loss, a fever and lethargy. However, no one testified or even implied that Brittany’s injuries and these conditions resulting from the March 2 shaking were life-threatening or, in the words of § 45-2-101(59), MCA (1991), that they created a “substantial risk of death.” Moreover, the State did not present evidence that Brittany has protracted loss or impairment of the function or process of any bodily member or organ as a result of the March 2 shaking.

We conclude that the evidence presented by the State clearly does not meet the applicable statutory definition of “serious bodily injury.” Therefore, even reviewing the evidence in a light most favorable to the prosecution, we conclude that a rational trier of fact could not have found beyond a reasonable doubt that Andrews caused Brittany serious bodily injury on March 2 by shaking her.

Reversed.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, LEAPHART and ERDMANN concur.


author: JUSTICE NELSON JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LYNN W. DOCKEN, Defendant and Appellant.
    No. 95-128.
    Submitted on Briefs August 17, 1995.
    Rehearing Denied January 11, 1996.
    Decided December 19, 1995.
    52 St.Rep. 1240.
    908 P.2d 213.
    274 Mont. 296.

      For Appellant: Jeffrey T. Renz, Montana Defender Project, University of Montana Law School, Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Pat Jordan, Assistant Attorney General, Helena; Deborah Butler, Acting Jefferson County Attorney, Boulder.
   JUSTICE NELSON

delivered the Opinion of the Court.

On June 1, 1989, the District Court for the Fifth Judicial District, Jefferson County, sentenced defendant Lynn W. Docken (Docken) to five years imprisonment, all of which was suspended. Upon petition, the District Court revoked the suspended sentence and imposed another five-year suspended sentence. Upon a second petition, the District Court revoked the second suspended sentence and imposed a five-year prison term. Docken appeals from the judgment imposing the prison term. We affirm.

Docken raises the following issue on appeal:

Did the District Court have jurisdiction to revoke Docken’s five-year suspended sentence and impose a second five-year suspended sentence?

BACKGROUND

On February 8, 1989, the State charged Docken with one count of forgery and, alternatively, with one count of forgery through common scheme. The District Court sentenced Docken to five years imprisonment for forgery through common scheme and suspended her sentence under certain conditions.

Approximately four years later, the State petitioned to revoke Docken’s suspended sentence for probation violations including possession of a firearm, failure to pay fines, misdemeanor offenses, and responding violently to law enforcement officers. Docken admitted the allegations of the petition. Concerned about the well-being of Docken’s child, the probation officer recommended probation. The District Court revoked Docken’s suspended sentence, stated that she was not to be given credit for time served, and imposed the original five-year suspended sentence.

Two and one-half months later, the State again petitioned to revoke Docken’s suspended sentence, alleging violations of her probation for use of unlawful drugs, possession of alcoholic beverages, failure to make restitution, and failure to maintain employment. The District Court revoked Docken’s second suspended sentence, did not allow credit for her time already spent on probation, and ordered her imprisoned at the Women’s Correctional Facility for five years. Docken appeals the District Court’s revocation of her suspended sentence and her sentence of imprisonment for five years.

DISCUSSION

Did the District Court have jurisdiction to revoke Docken’s five-year suspended sentence and impose a second five-year suspended sentence?

Section 46-18-203(1), MCA, gives the sentencing judge the discretion to revoke a suspended sentence. State v. Otwell (1989), 240 Mont. 376, 377, 784 P.2d 402, 403. We will not overturn “a District Court’s revocation of a suspended or deferred sentence absent a showing that the court abused that discretion.” State v. Strangeland (1988), 233 Mont. 230, 234, 758 P.2d 776, 778 (citing State v. Robinson (1980), 190 Mont. 145, 149, 619 P.2d 813, 815). However, where, as here, the issue involves the existence of the court’s jurisdiction to exercise the discretion conferred by the statute, our review is plenary.

Docken’s arguments are two-fold. She claims that the District Court did not have jurisdiction to impose a suspended sentence and then revoke it and impose a second suspended sentence. Because she argues that the District Court lacked jurisdiction to impose the second suspended sentence, Docken also claims that the subsequent revocation of the second suspended sentence and imposition of a sentence of five years in the Women’s Correctional Facility is void.

Docken relies on our decision in State v. Downing (1979), 181 Mont. 242, 593 P.2d 43, to assert that the District Court lacked jurisdiction to revoke her suspended sentence and impose a second suspended sentence. The State asserts that this Court should follow its reasoning in Speldrich v. McCormick (1990), 243 Mont. 238, 794 P.2d 339; and State v. Oppelt (1979), 184 Mont. 48, 601 P.2d 394, to hold that the District Court had the authority to reimpose the suspended sentence and retain jurisdiction.

In Downing the defendant pleaded guilty to burglary of a motor vehicle, a felony, and was sentenced to three years imprisonment, suspended on various conditions. Two and one-half years later, on petition of the county attorney, the district court revoked the defendant’s suspended sentence and entered another judgment whereby Downing was sentenced to spend sixty days in the county jail and thirty-four months on suspended sentence status. Over a year and a half later (after the defendant has served his sixty days) the county attorney filed a petition to revoke the suspended portion of the defendant’s sentence. The district court denied the defendant’s motion to dismiss the petition and, granting the petition, ordered him to serve the remaining thirty-four months of his suspended sentence. Downing, 593 P.2d at 44.

On appeal, Downing conceded that the district court had the power to revoke his suspended sentence and order him to serve a three-year term in prison. However, he argued that the district court did not have the statutory authority to revoke his suspended sentence and then modify the original sentence. Downing, 593 P.2d at 44. We noted that “[o]nce a valid sentence is imposed, the court lacks jurisdiction to vacate or modify it unless specifically authorized by statute.” Downing, 593 P.2d at 44.

Section 95-2206(6), RCM (1947), the statute in effect at the time the crime was committed, provided that any judge who has suspended the execution of a sentence may:

revoke such suspension or impose sentence and order such person committed, or may, in his discretion, order the prisoner placed under the jurisdiction of the state board of pardons as provided by law, or retain such jurisdiction with this court.

We determined that this section allowed the sentencing court three mutually exclusive alternatives in dealing with a defendant who has violated the conditions of probation. We stated that the sentencing court may “ ‘... revoke such suspension ... and order such person committed ... [or] retain such jurisdiction with this court.’ ” Downing, 593 P.2d at 45.

We concluded that, on the first petition to revoke, the court exercised the first alternative under the statute, i.e., to revoke the suspended sentence and order the defendant committed. We determined that the court erred, however, in going beyond simply revoking Downing’s suspended sentence and committing him by instead requiring him to serve sixty days in the county jail and another thirty-four months on suspended sentence. We held that there was no statutory authority for the district court to grant the county attorney’s second petition to revoke Downing’s suspended sentence and that the district court no longer had jurisdiction to impose a second sentence. Downing, 593 P.2d at 45.

Notwithstanding Downing and without reference to our decision in that case, we subsequently held that a district court had jurisdiction to revoke a suspended sentence and impose a term of incarceration plus a second suspended sentence when the length of the original sentence remained the same. Speldrich, 794 P2.d at 340 (remanding for the district court to state its reasons for allowing or rejecting elapsed time as credit against the sentence).

In Speldrich, the defendant was found guilty of aggravated assault, a felony, and was sentenced to five years in the Montana State Prison, suspended on conditions. Over four years later, on petition, the district court revoked and vacated the suspended sentence and ordered the defendant to serve five years in prison, two of those years suspended on conditions. Speldrich, 794 P.2d at 339.

In reviewing the defendant’s petition for writ of habeas corpus, we stated our concern as being whether “there was any limitation upon the power of the District Court to reimpose the original five year sentence after completion of four and one-half years of the suspended sentence.” Speldrich, 794 P.2d at 340. After reviewing “relevant statutory and case law” we concluded, however, that “the District Court had jurisdiction to revoke the suspended sentence and to impose the original sentence of five years with two years suspended.” Speldrich, 794 P.2d at 340.

While it might be argued that inDowning we focused on the district court’s modification of the defendant’s original sentence and that in Speldrich we upheld the district court’s imposition of a second suspended sentence because the original sentence was not altered, a careful reading of both cases reveals that such an argument is semantics. In Downing, the court revoked the original thirty-six month suspended sentence and then imposed sixty days of incarceration and thirty-four months suspended; in Speldrich, the court revoked the original five years suspended sentence and imposed three years incarceration and two years suspended. In neither case was the length of the original sentence modified; in both cases the first revocation of suspension was followed by a combination of incarceration and suspension. Finally, notwithstanding that the pertinent language in statutes in effect when each case was decided — § 95-2206(6), RCM 1947, (Downing) and § 46-18-203(1), MCA (Speldrich) — is virtually the same, the results of the two cases are irreconcilable. Under such circumstances, it is again appropriate that we examine the language of the statute.

In reviewing the District Court’s jurisdiction in this case we look to § 46-18-203(1) (1987), MCA, because it was the statute in effect at the time the crime was committed. See State v. Azure (1978), 179 Mont. 281, 282, 587 P.2d 1297, 1298. Section 46-18-203(1) (1987), MCA, provides in pertinent part:

A judge ... who has suspended the execution of a sentence ... is authorized in his discretion to revoke the suspension or impose sentence and order the person committed. He may also, in his discretion, order the prisoner placed under the jurisdiction of the department of institutions as provided by law or retain such jurisdiction with his court. [Emphasis added.]

This Court has construed “retain such jurisdiction with his court” to be synonymous with continuing a suspended sentence. See Oppelt, 601 P.2d at 397; State v. Rogers (1994), 267 Mont. 190, 193, 883 P.2d 115, 117.

After conviction, the decision to suspend a sentence is a ‘decision to forego complete denial of liberty by incarceration in favor of a judicially-supervised period of restricted liberty .... In essence, the trial court retains jurisdiction over the defendant by imposing conditions on defendant’s freedom to which he agrees to abide. [Citations omitted and emphasis added.]

Oppelt, 601 P.2d at 397.

In the instant case, the District Court had the statutory authority under § 46-18-203(1), MCA (1987), to revoke Docken’s originally imposed suspended sentence. Under Speldrich, the court also had the power to retain jurisdiction over the defendant by reimposing the original five year sentence and then suspending the sentence reimposed. Since in Speldrich we upheld the court’s authority to revoke and then reimpose the original sentence via a combination of imprisonment and suspension both totaling no greater than the length of the original sentence, it follows that here the sentencing court likewise had the authority to revoke, reimpose, and then suspend the entirety of the defendant’s original sentence, so long as the reimposed sentence did not exceed the length of the original sentence. Speldrich, 794 P.2d at 340.

The State argues that this Court should overrule Downing. We agree. Our holding in Downing is inconsistent with our holding in Speldrich. On carefully reexamining Downing, we conclude that our decision was in error. Contrary to our interpretation of § 95-2206(6), RCM 1947, that statute provided more latitude to the district court than our restrictive reading allowed. Under the plain language of § 95-2206(6), RCM 1947, the court could revoke the suspended sentence or impose sentence and order the defendant committed, or order the prisoner placed under the jurisdiction of the state board of pardons, or retain jurisdiction. Under the statute as written, revoking the suspended sentence did not require imposing sentence and ordering commitment. While revocation, imposition of sentence, and order of commitment was one alternative available to the district court, the court also had jurisdiction to revoke the suspended sentence and retain jurisdiction. If the court retained jurisdiction, then it retained the ability to suspend or partially suspend the imposition of sentence. See Oppelt, 601 P.2d at 397. Although Speldrich did not specifically address Downing as it should have, it is clear that our decision in Speldrich effectively overruled Downing. If that was not evident then, it is now, by our decision here.

In the instant case, the District Court did not modify Docken’s original sentence but, rather, under the authority of § 46-18-203(1), MCA(1987), and consistent with Speldrich, it revoked her suspended sentence and then reimposed the original five-year sentence. Choosing to retain jurisdiction under 46-18-203(1), MCA (1987), the court then suspended all five years of the sentence. Having thus retained jurisdiction, the District Court had authority under § 46-18-201(1), MCA (1987), to then revoke Docken’s second suspended sentence and order her commitment to the Women’s Correctional Facility for the full term of five years. We hold that the District Court had the statutory authority, and thus jurisdiction, to impose the second suspended sentence and that its decision to subsequently revoke that suspended sentence is not void.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY and LEAPHART concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion which uses semantic smoke and mirrors to ignore the plain language of § 46-18-203, MCA. The role of this Court in the construction of a statute is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted. Section 1-2-101, MCA.

As we correctly concluded in State v. Downing (1979), 181 Mont. 242, 593 P.2d 43, Section 95-2206(6), RCM (1947) (current version at § 46-18-203, MCA), simply does not provide the option of reimposing a second suspended sentence after a first suspended sentence has been revoked. We appropriately noted, “[t]he State’s position seems to be that a three year suspended sentence can technically impede the defendant for the rest of his life.” Downing, 181 Mont. at 244, 593 P.2d at 44. That now seems to be the majority’s position.

We held in Downing that:

Once the decision was made to revoke defendant’s suspended sentence, the District Court had the discretion to allow credit for the “good time” served by the defendant, but that is all. Section 95-2206(3), R.C.M. 1947. The District Court did not have the statutory authority to require defendant to serve sixty days in the Ravalli County Jail and another thirty-four months on a suspended sentence. Section 95-2206(6) did not permit this kind of modification.

Accordingly, there was no authority for the District Court to grant the county attorney’s petition to again revoke the suspended sentence. Atthis point, the District Courtno longer has jurisdiction over the defendant and a sentence imposed at this time would be void.

Downing, 181 Mont. at 245, 593 P.2d at 45.

The majority’s conclusion that there is an unreconciled conflict between Downing and our decision in Speldrich v. McCormick (1990), 243 Mont. 238, 794 P.2d 339, is nothing more than the creation of a straw man so that it can be knocked down. There is no conflict between Downing and Speldrich. Speldrich involves a one and one-half page order and opinion in which we remanded a case to the district court for further consideration of the sentence imposed in light of § 46-18-201, MCA, which gives the district court the discretion to credit time served under a suspended sentence against the actual time served after revocation of that sentence. As we pointed out in Speldrich, the defendant in that case did not even appeal his sentence or conviction. That case did not involve the same issue which we discussed in Downing. Neither § 46-18-203, MCA, nor its predecessor which was involved in Downing, were raised or discussed in that case. It is no mystery that the opinion did not discuss Downing. The State’s brief did not even raise Downing because the same issue was not involved.

After constructing a conflict which does not exist, the majority reconciles the conflict by overruling Downing in favor of an interpretation of § 46-18-203, MCA, which makes no sense, cannot be justified by the plain language in the statute, and which in no way is supported by this Court’s one and one-half page opinion and order in Speldrich. The majority concludes that that language contained in § -203 which gives the district court authority to “retain jurisdiction,” gives it the authority to impose a second and additional sentence after revoking the first sentence, even though four out of five years on the first suspended sentence have already been served. How the meaning of simple language can be distorted in this fashion is beyond me.

The statute simply does not provide the District Court with the option of imposing a new and different sentence after revoking the original suspension of sentence. As we held in Downing, the plain language of the statute gives the court three alternatives: (1) It may revoke the suspended sentence and order the person committed; (2) it may order the person placed under the jurisdiction of the department of institutions; or (3) it may retain jurisdiction with the court.

The majority takes language out of context from State v. Oppelt (1979), 184 Mont. 48, 601 P.2d 394, for its conclusion that “retain such jurisdiction with his court” is synonymous with “impose a new suspended sentence.” However, this cut and paste approach to arriving at its conclusion is not justified. In Oppelt, the defendant contended that revocation of a suspended sentence based on conviction of a second crime constituted a double punishment for the second crime, and therefore, violated the Fifth Amendment prohibition against subjecting a person to double jeopardy for the same offense. In describing a suspended sentence, we stated that during the period of suspension the court retains jurisdiction over the defendant’s freedom with the option of incarcerating him should he not comply with the terms of his suspended sentence. We used that expression to illustrate that when a suspended sentence is revoked, a defendant is not being punished for a new offense, and therefore, the prohibition against double jeopardy is not offended. By no stretch of the imagination can our statement in Oppelt, 184 Mont. at 53, that, “the trial court retains jurisdiction over the defendant’s freedom” justify the majority’s conclusion in this case that similar language found in § 46-18-203, MCA, allows the court to impose a new and additional sentence which is not provided for by statute in the event a defendant violates the terms of his probation. “Retained jurisdiction” in Oppelt was used solely for the purpose of explaining why, if a defendant violates a term of probation, the district court has the authority to impose the original sentence which was suspended without that action being considered an additional punishment.

The majority may like the flexibility that its opinion gives district courts for perpetuating their involvement in the lives of criminal offenders. A little creative use of the English language here, and a little distortion of a statute’s terms there, and there is no end to the solutions our district courts could come up with to deal with what we all concede is anti-social conduct. My objection to the majority opinion is that it simply is not authorized by the plain language of the statute we have been asked to construe.

For these reasons, I dissent from the majority opinion.

JUSTICE HUNT joins in the foregoing dissent.

      . The dissent, by footnote, points to a difference between the Montana Reports and the Pacific Reporter Second with regard to certain language quoted from Oppelt. Marutzky v. State (Okla.Cr. 1973), 514 P.2d 430, 431, was cited in Oppelt as authority for the statement at issue. In Marutzky, the court stated: “The court maintains continuing jurisdiction via a judgment and sentence which imposes subsequent conditions upon defendant’s freedom, conditions to which defendant agrees to abide.” Accordingly, for whatever reason the full quote from Oppelt ws not included in the Montana Reports, the Pacific Reporter Second language is a more accurate paraphrase of the language in Marutzky than is the language from the Montana Reports. Moreover, the original opinion of this Court on file with the Clerk of Court as Cause No. 14289 (decided October 17, 1979) contains the language as set forth in the Pacific Reporter.

      . This dissent quotes language from Oppelt in the Montana Reporter (which includes the official reports for our decisions) 184 Mont. at page 53, 601 P.2d 394 which states that the trial court retains jurisdiction over “the defendant’s freedom.” The Pacific Reporter Second, page 397, on which the majority opinion relies, states that the court retains “jurisdiction over the defendant.”


author: JUSTICE ERDMANN JUSTICE NELSON JUSTICE LEAPHART,

text:
    LEWIS S. ROBINSON, III, et al., Plaintiffs and Appellants, v. FIRST WYOMING BANK, N.A., JACKSON HOLE, a Wyoming corporation, and FIRST WYOMING BANCORPORATION, a Wyoming corporation, Defendants and Respondents.
    No. 95-175.
    Submitted on Briefs November 9, 1995.
    Decided December 19, 1995.
    52 St.Rep. 1245.
    909 P.2d 689.
    274 Mont. 307.

      For Appellants: Michael J. Lilly, Berg, Lilly, Andriolo & Tollefsen, Bozeman.
    For Respondents: Malcolm H. Goodrich, Crowley, Haughey, Hanson, Toole & Dietrich, Billings.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

This is an appeal of an order of the Eighteenth Judicial District Court, Gallatin County, denying Lewis S. and Linda T. Robinsons’ motion to quash a writ of execution issued on a Wyoming judgment in favor of Key Bank of Wyoming, formerly First Wyoming Bank (the bank), and a subsequent order granting summary judgment in favor of the bank on the Robinsons’ declaratory judgment action. We reverse in part and affirm in part.

We restate the issues as follows:

1. Are the Robinsons barred from appealing the District Court’s April 14, 1994, order denying their motion to quash the bank’s writ of execution?

2. Did the District Court err in ruling that 28 U.S.C. § 1963 created a new judgment for purposes of the six year period during which a writ of execution can be issued?

3. Did the District Court err in failing to determine that the bank should have complied with the Uniform Enforcement of Foreign Judgments Act when it registered the Wyoming consent judgment in Montana state court?

4. Did the District Court err in granting summary judgment in favor of the bank on the Robinsons’ declaratory judgment action?

FACTS

The Robinsons executed a promissory note in favor of the bank on March 22, 1985, in the amount of $353,161. On August 30, 1985, the Robinsons gave the bank a mortgage on property in the Gallatin Valley (the property) as security for the promissory note. The mortgage had an effective date of March 22, 1985.

In the mid-1980s, the Robinsons and the bank became involved in litigation in Wyoming over a variety of issues arising from the bank’s treatment of the Robinsons. The Robinsons sued the bank for fraud, breach of contract, breach of fiduciary duty, RICO, negligence, and punitive damages. The bank counterclaimed against the Robinsons for payment of the promissory note together with other outstanding obligations. The bank and the Robinsons entered into a judgment by stipulated consent in which the Robinsons agreed to pay the bank $175,000. This payment was intended to completely replace the amount previously owed under the promissory note. The judgment on this amount was entered in the Wyoming Federal Court on December 3, 1987. It was not appealed by the Robinsons.

The Wyoming consent judgment was registered in the United States District Court for Montana on August 1, 1989, pursuant to 28 U.S.C. § 1963. On November 27, 1991, the bank filed a transcript of the Montana federal court judgment with the Gallatin County Clerk of Court. The bank caused the clerk of court to issue four different writs of execution but the first three were returned unsatisfied. The fourth writ was issued on December 16, 1993, and was served on the Robinsons on January 3, 1994. On February 4, 1994, the Robinsons moved to dismiss the verified application for sale of the property and to quash the writ.

On February 2, 1994, the Robinsons filed a completely separate action against the bank seeking to have the bank’s mortgage declared null and void. The bank filed a motion with the District Court to dismiss this action. Later, the bank moved to convert their motion to dismiss to a motion for summary judgment.

On April 7, 1994, the Robinsons moved to consolidate the two actions, which the court did on May 6. On April 14, 1994, the court denied the Robinsons’ motion to quash the writ and ruled that the filing of the December 3, 1987, Wyoming judgment with the Montana Federal Court on August 1, 1989, was the equivalent of filing a new judgment. In its conclusion, the court determined that the six years for issuing a writ of execution on that judgment ran from August 1, 1989.

On May 2, 1994, the Robinsons moved the court to reconsider its April 14 order. On May 6,1994, when the court had entered the order consolidating the two cases, it also noted that the bank’s motion to dismiss would be converted to a motion for summary judgment. On June 17,1994, the court denied Robinsons’motion for reconsideration of its April 14 order.

The court entered an order granting summary judgment in favor of the bank and against the Robinsons on February 2, 1995. From both the April 14, 1994, and the February 2, 1995, orders, the Robinsons appeal.

ISSUE 1

Are the Robinsons barred from appealing the District Court’s April 14, 1994, order denying their motion to quash the bank’s writ of execution?

The bank contends that the April 14,1994, order was a post-judgment order and a “special” order capable of appeal under Rule 1(b)(2), M.R.App.P. Thus, the time for its appeal expired on May 14, 1994, and the Robinsons’ February 23,1995, appeal of this order should be dismissed. The Robinsons counter that once the cases were consolidated on May 6, the order became an interlocutory order in the consolidated appeals. As a result, the Robinsons contend the April 14 order was not subject to appeal at that time. See Rule 1, M.R.App.P; Matter of Sage Creek Drainage Area (1988), 234 Mont. 243, 763 P.2d 644.

The bank asserts that the order was entered prior to the consolidation of the actions and cannot be viewed as an interlocutory order in the consolidated proceedings. Other supreme courts, however, have held that once cases are consolidated they are one for all appellate purposes. Mallin v. Farmers Ins. Exchange (Nev. 1990), 797 P.2d 978, 980; State v. District Court of Second Judicial District (Wyo. 1963), 387 P.2d 550. In concurring with this principle, the Ninth Circuit Court said:

In our view, the best approach is to permit the appeal only when there is a final judgment that resolves all of the consolidated actions unless a 54(b) certification is entered by the district court. This leaves the discretion with the court which is best able to evaluate the affect [sic] of an interim appeal on the parties and on the expeditious resolution of the entire action.

Huene v. United States (9th Cir. 1984), 743 F.2d 703, 705 (alteration in original).

In the present case, the order in question was issued on April 14, 1994, which gave the Robinsons until May 14, 1994, in which to file an appeal with this Court. The actions were consolidated on May 6, 1994. Thus, the consolidation postponed the time for appeal of the order to that of the court’s final judgment in the consolidated actions. We therefore hold that the substance of the April 14, 1994, order is properly before this Court.

ISSUE 2

Did the District Court err in ruling that 28 U.S.C. § 1963 created a new judgment for purposes of the six year period during which a writ of execution can be issued?

The Wyoming federal court judgment was registered in Montana federal court pursuant to 28 U.S.C. § 1963. That section provides:

“A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner.” The District Court concluded that registration under this statute created a new judgment so that the date of the Wyoming judgment for purposes of the issuance of a writ of execution is the date that the judgment was registered in Montana federal court. The Robinsons disagree, contending that the plain language of § 1963 requires the six year period during which a writ of execution can be issued under § 25-13-101, MCA, to commence upon the date the judgment was docketed in Wyoming — December 3, 1987.

The District Court’s conclusion was in response to a question of law. Accordingly, we will review questions of law to determine if the district court’s interpretation is correct. Farmers Plant Aid, Inc. v. Huggins (1994), 266 Mont. 249, 252, 879 P.2d 1173, 1175. Federal courts have ruled inconsistently on whether the registration of a judgment pursuant to 28 U.S.C. § 1963 creates a new judgment date. Compare Juneau Spruce Corp. v. International Longshoremen’s and Warehousemen’s Union (U.S.D.C. Haw. 1955), 128 F. Supp. 697, with Stanford v. Utley (8th Cir. 1965), 341 F.2d 265, and United States v. Kellum (5th Cir. 1975), 523 F.2d 1284.

The Ninth Circuit Court, in Marx v. Go Publishing Co. (9th Cir. 1983), 721 F.2d 1272, ruled that § 1963 created a new judgment when it was filed in federal court. In that opinion, however, the court looked to California state law and determined that “[u]nder analogous California law, the ten year period for a valid and enforceable judgment of a sister state runs anew from the time of its filing in the state superior court ....’’Marx, 721 F.2d at 1273. The court then stated “[w]e discern no reason why the statute of limitations rule of the state should not apply to the federal proceedings.” Marx, 721 F.2d at 1273.

When the Wyoming judgment was registered in Montana federal court, Montana had not yet adopted the Uniform Enforcement of Foreign Judgments Act. Section 25-9-303, MCA, provided for the registration of a federal judgment in state court, however, it was limited to judgments rendered in the Circuit or District Court of the United States, Ninth Circuit, District of Montana. This statute does not address the registration of judgments of a sister state, as did the California statute in Marx. Therefore, we have no analogous state authority upon which to rely at the time the judgment was registered and Marx is inapplicable.

While the Eighth Circuit, in Stanford, held that registration under § 1963 provided the equivalent of a new judgment in the registration court, the issue presented in Stanford is distinguishable from the issue presented in this case. In Stanford, a 1956 Mississippi federal judgment was registered that year in Missouri federal court pursuant to § 1963. Mississippi had a seven year period of limitations, while Missouri had a ten year period of limitations. The judgment creditor sought to discover Missouri assets more than seven but less than ten years after registration of the judgment in Missouri. The district court quashed the action, reasoning that the judgment was dead under the Mississippi seven year period of limitations. The Eighth Circuit found that the Missouri registration equated to a new Missouri federal judgment and went on to hold that:

It follows from this that the Missouri ten year period of limitations, provide by V.A.M.S. § 516.350, and not the Mississippi seven year period, applies so far as enforcement is concerned, and that execution proceedings by the plaintiff within the Missouri period, and otherwise proper, are not subject to dismissal.

Stanford, 341 F.2d at 268.

In Stanford, the Court applied the Missouri ten year period of limitations which allowed the enforcement of the judgment not only from the date of registration, but also from the date the judgment was originally docketed in Mississippi. After discussing the number of questions that their decision would leave unanswered, the Court in Stanford limited their holding:

The presence of these and undoubtedly many other questions prompts us to emphasize that the conclusion we reach here is one having application to the fact situation of this case. We do not now go so far as to say that registration effects a new judgment in the registration court for every conceivable purpose; neither do we say that it fails to do so for any particular purpose.

Stanford, 341 F.2d at 271.

The Fifth Circuit recognized in Kellum that Stanford did not hold that registration created a brand new judgment to be enforced as if there had never been a prior judgment in the case. Kellum, 523 F.2d at 1289. The Ninth Circuit, in Matanuska Valley Lines, Inc. v. Molitor (1966), 365 F.2d 358, also found that the rule in Stanford was limited and stated “the holding of the Eighth Circuit court relates to the effect of valid registration upon subsequent enforcement proceedings.” Matanuska, 365 F.2d at 360. In this case, there is no issue as to valid registration of the Wyoming federal judgment in the Montana federal court because the judgment was still a “live” judgment under the laws of Wyoming at the time it was registered. See Wyo. Stat. § 1-17-307.

Regardless of whether Stanford stands for the proposition that § 1963 creates a new judgment in the registering state, that interpretation of § 1963 has the deleterious effect of nullifying the limitation period in both the issuing state and the registration state. In Wyoming, for example, a judgment becomes dormant after five years if an execution is not issued within that period although it may be revived under certain circumstances. See Wyo. Stat. §§ 1-16-502 and 1-17-307. Under the bank’s theory, if a judgment creditor registered the judgment in Montana pursuant to § 1963 within five years after it was docketed in Wyoming, they would have an additional six years to obtain a writ of execution in Montana without leave of court and four additional years to obtain a writ with leave of court. This extends the period in which to execute the judgment to fourteen years, which is beyond either the Montana or Wyoming limitation. Such a result is repugnant to the laws of both states. See Powles v. Kandrasiewicz (W.D.N.C. 1995), 886 F. Supp. 1261.

We therefore adopt the analysis of the United States District Court in Juneau which reviewed the legislative intent of the enactment of 28 U.S.C. § 1963 and concluded that “the plain and simple purpose of the statute is enforcement of the original judgment.” Juneau, 128 F. Supp. at 700 (citing 1954 U.S.C.C.A.N. 3142, where Congress stated the original purpose of the statute while discussing an amendment which extended the scope of § 1963 to the district court of Alaska). The Juneau court determined “Registration is purely a ministerial act in the enforcement of a foreign judgment [by reason that i]t confers upon this court no power to alter the judgment itself.” In contrast, a suit upon a judgment differs from a registration in that a suit “is a new and independent action, not ancillary to the original action.” Juneau, 128 F. Supp. at 699.

Clearly there is an intended difference in bringing a separate action for the enforcement of a judgment and in merely registering a judgment where both creditors and debtors are relieved of the additional cost and harassment of further litigation. See 1954 U.S.C.C.A.N. 3142. This difference reflects the ministerial effect of registration under 28 U.S.C. § 1963 and that registration should not cause a new judgment date.

We hold that the six year period during which a writ of execution can be issued under § 25-13-101, MCA, commences on the date the judgment was docketed in the original forum when a judgment is filed in Montana federal court pursuant to § 1963. We therefore conclude the District Court erred when it held that 28 U.S.C. § 1963 created a new judgment for purposes of the six year period during which a writ of execution can be issued and we reverse the District Court on that issue. As a result of this holding, the period during which the bank could cause a writ to be issued began to run from the date of the Wyoming judgment, December 3, 1987. The six year period referenced in § 25-13-101, MCA, expired on December 3, 1993, thus barring the writ issued on December 16, 1993.

ISSUE 3

Did the District Court err in failing to determine that the bank should have complied with the Uniform Enforcement of Foreign Judgments Act when it registered the Wyoming consent judgment in Montana state court?

The Robinsons claim that the bank did not comply with the procedures set forth in the Montana Uniform Enforcement of Foreign Judgments Act, §§ 25-9-501 to -508, MCA. The District Court, in its April 14, 1994, order, noted that the Uniform Act was not in effect at the time the Wyoming judgment was registered in Montana federal court. The court went on to find that there was nothing in the record to indicate that the bank did not comply with the procedures set forth in 28 U.S.C. § 1963. The court concluded that the Uniform Act did not apply retroactively to the bank under the facts of this case.

We will review a district court’s conclusion of law for its correctness. Farmers Plant Aid, 879 P.2d at 1175. The District Court was correct in that the Uniform Act did not apply to the registration of the Wyoming judgment in the Montana federal district court. However, the judgment was then filed in state district court subsequent to Montana’s adoption of the Uniform Act. The Robinsons assert that the Uniform Act should have been followed by the bank when it filed the Montana federal court judgment in the Montana district court. Contrarily, the bank argues that a foreign judgment under the Uniform Act should be construed to mean a judgment of any non-Montana federal or state court. Under the bank’s reasoning, the bank should not be obliged to follow the Act where the federal court and the state court in which the federal judgment is filed are located in the same state.

Section 25-9-502, MCA, in the Uniform Act defines a “foreign judgment” to mean “a judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.” Where the language of a statute is clear and unambiguous, we look no further than to the plain meaning of the statute for its interpretation. Howell v. State (1994), 263 Mont. 275, 284, 868 P.2d 568, 573. The Uniform Act clearly applies to federal court judgments registered in state district courts regardless of whether the federal court is located in the same state as the state court.

Our holding that the Uniform Act applied to the registration of Montana as well as non-Montana federal court judgments is not dispositive of this issue. We earlier cited § 25-9-303, MCA, which provides for the filing of a transcript of a Montana federal court judgment in state court. This statute, enacted in 1927, is not referenced in the Uniform Act and provides, in part, as follows:

25-9-303. Filing of transcript of docket of federal court - lien - expiration. (1) A transcript of the original docket of a judgment that is rendered in the circuit or district court of the United States, ninth circuit, district of Montana, and that is certified by the clerk of court may be filed with the district court clerk of any county. From the time of the filing, the judgment becomes a lien upon all real property of the judgment debtor that is not exempt from execution in the county and that is either owned by the judgment debtor at the time or afterward acquired by the judgment debtor before the lien expires. Except as provided in subsection (2), the hen continues for 6 years unless the judgment is previously satisfied.

Given the continued vitality of that statute and the oft-stated rules that a repeal of a statute by implication is disfavored, § 25-9-303(1), MCA, provides an alternative method for filing a judgment of a Montana federal court in Montana state court in addition to the procedure under the Uniform Act. The bank, in filing a “Transcript of Judgment” from the Montana federal court in the Montana state court, complied with § 25-9-303(1), MCA.

We hold that the bank was not required to register the judgment in Montana state court under the Uniform Act because the bank had the option of filing the judgment pursuant to § 25-9-303(1), MCA. Our holding in Issue 2 that the December 16, 1994, writ of execution was defective does not render this point moot since the transcript of judgment was properly filed pursuant to § 25-9-303(1), MCA, and the bank could request leave of court to have the clerk of court issue a writ pursuant to § 25-13-102, MCA.

ISSUE 4

Did the District Court err in granting summary judgment in favor of the bank on the Robinsons’ declaratory action?

The Robinsons brought an action in District Court for a declaratory judgment ordering that the mortgage the bank held on the Robinsons’ Montana property be declared null and void. In that action, the Robinsons claimed the bank’s mortgage was invalid for two reasons— there was a failure of consideration for the mortgage and the eight-year statute of limitations for foreclosing on a mortgage, § 27-2-202(1), MCA, had expired.

The Robinsons also claimed that the mortgage slandered the title to their property. They did not, however, set forth an argument for their claim of slander in either the District Court or this Court, and therefore, we will not address the merits of that claim. See Allmaras v. Yellowstone Basin Properties (1991), 248 Mont. 477, 483, 812 P.2d 770, 773.

In considering the Robinsons’ first two claims, the District Court granted summary judgment in favor of the bank. The court determined that there were no questions of fact and the bank was entitled to judgment as a matter of law. The standard we employ in reviewing a district court’s summary judgment is the same as that employed by the district court. Summary judgment is proper only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Klawitter v. Dettmann (1995), 268 Mont. 275, 886 P.2d 416.

The Robinsons claim a question of fact exists as to whether consideration was given for the mortgage. The court determined that the Wyoming judgment resolved the issue of whether there was consideration for both the promissory note and the mortgage executed by the Robinsons. The court concluded there was no question of fact and principles of res judicata barred relitigation of this claim as a matter of law. The Robinsons assert that the Wyoming consent judgment was based solely on consideration for the promissory note, while the mortgage is the subject of the present action.

The Wyoming consent judgment, however, stated that “[a]ll mortgages and security interests ... shall ... secure the payment of this judgment.” By this statement, the Robinsons agreed that the consideration for the mortgage is security of the judgment. The Robinsons did not appeal the consent judgment.

In HKM Assoc. v. Northwest Pipe Fittings (1995), [272 Mont. 187], 900 P.2d 302, 305, we set out a three-part test for collateral estoppel.

Collateral estoppel bars an action... when: (1) the issue presented in a later action has been decided in a prior adjudication; (2) a final judgment in the action was issued; and (3) the party against whom collateral estoppel is asserted was a party to the previous litigation.

HKM Assoc., 900 P.2d at 305 (citing Berlin v. Boedecker (1994), 268 Mont. 444, 453, 887 P.2d 1180, 1185; Farmers Plant Aid, 879 P.2d at 1176). In the instant case, the Robinsons raise the issue of whether there was consideration for the mortgage. The Wyoming consent judgment recognized that the mortgage was valid and secured payment of the judgment thereby resolving the identical issue now presented. Additionally, there was a final judgment that held the mortgage was valid, and finally, the Robinsons were a party to both the Wyoming judgment and the declaratory action before us. We therefore conclude that the Robinsons are estopped from claiming there was no consideration for the mortgage.

Although our conclusion is based on collateral estoppel rather than res judicata, we will uphold the result reached by the District Court since it is correct, regardless of the reason given for it. See Lindey’s v. Goodover (1994), 264 Mont. 449, 453, 872 P.2d 764, 766. We therefore hold that the District Court did not err in finding there was no question of fact and that the Robinsons’ first claim should be dismissed.

The Robinsons argued in their motion to the District Court for summary judgment that they were entitled to an order declaring the mortgage invalid since eight years had passed from when the mortgage became due and its foreclosure was barred by the statute of limitations in § 27-2-202(1), MCA. The District Court, while noting that the Wyoming judgment ordered that the mortgage secure the payment of the promissory note, went on to analyze the issue in the context of a judgment lien. In ultimately holding that the statute of limitations had not rim on the execution of a judgment lien, the court denied the Robinsons’ motion and granted the bank’s motion for summary judgment instead.

The Robinsons argued on appeal that the issue was the validity of the mortgage and again urged that the eight year statute of limitations had expired and the mortgage is therefore invalid and unenforceable. As we have noted, in the Wyoming consent judgment the parties agreed to the order which provided that the mortgage “shall continue in effect and secure the payment of this judgment until such time this judgment has been fully paid and satisfied.” According to the order, the Robinsons and the bank agreed to extend the mortgage until the judgment was paid. This Court has held that parties may agree to extend the life of a mortgage. Aitken v. Lane (1939), 108 Mont. 368, 375, 92 P.2d 628, 630. We conclude that the Wyoming consent judgment tolled the statute of limitations until the underlying obligation was paid, and therefore, the statute of limitations had not yet begun to run on the enforcement of the bank’s mortgage.

Since the Robinsons agreed to toll the statute of limitations in the Wyoming consent judgment, they cannot now argue that the eight year statute under § 27-2-202(1), MCA, has run on the mortgage. This Court however makes no determination as to the effect of the tolled statute of limitations in regard to the mortgage.

Although we do not follow its reasoning, we agree with the District Court’s result on the issue of whether the statute of limitations has expired. See Lindey’s, 872 P.2d at 766. Therefore, we conclude that the District Court did not err in holding that the statute of limitations had not run on the execution of a judgment lien.

In summary, the District Court’s April 14, 1994, order is properly before this court due to the consolidations of the two district court actions. We reverse the District Court’s ruling that 28 U.S.C. § 1963 created a new judgment for purposes of the six year period for issuing a writ of execution found in § 25-13-101, MCA, and conclude that the bank’s writ is quashed because of the expiration of that period. We further conclude that the bank properly filed a transcript of the Montana federal court judgment in state court pursuant to § 25-9-303(1), MCA. Although we rely on other grounds, we affirm the District Court’s grant of summary judgment in the declaratory judgment action in favor of the bank on the Robinsons’ claim that the mortgage is invalid due to a lack of consideration. Finally, we again rely on other grounds to affirm the District Court’s granting of summary judgment in favor of the bank in the declaratory judgment action on the Robinsons’ statute of limitations argument. The parties clearly agreed to toll the statute of limitations for foreclosing on the mortgage until the judgment was satisfied.

CHIEF JUSTICE TURNAGE and JUSTICE HUNT concur.

JUSTICE NELSON

concurs and dissents.

I agree with our analysis of Issues 1, 3 and 4 and dissent from our decision on Issue 2.

On Issue 2,1 disagree with our conclusion that on registration of the Wyoming federal court judgment in Montana federal district court, a new judgment was not created under 28 U.S.C. § 1963. In my view, we should interpret the effect of registration under this federal statute as the federal circuit courts have.

In Stanford v. Utley (8th Cir. 1965), 341 F.2d 265, then Circuit Judge Blackmun, wrote what is probably the seminal decision interpreting § 1963. Contrary to our decisionhere, the federal court stated:

We have concluded that § 1963 is more than “ministerial” and is more than a mere procedural device for the collection of the foreign judgment. We feel that registration provides, so far as enforcement is concerned, the equivalent of a new judgment of the registration court. [Emphasis added.]

Stanford, 341 F.2d at 268.

The court based its conclusion on several considerations. First, the court found the statute to be more comprehensive than the limited execution type of statute exemplified by 28 U.S.C. § 2413. Moreover the clear, unambiguous and purposeful language § 1963 requires registration to “have the same effect as a judgment,” rather than something far inferior. Second, giving the transferred judgment “lesser status” would thwart some or all of the purposes of § 1963, which include the simplification and facilitation of enforcement of federal judgments; the elimination of the necessity and expense of a second lawsuit; and the avoidance of impediments such as diversity of citizenship which new and distinct federal litigation might otherwise encounter. Third, the authorities (Moore’s Federal Practice; Barron & Holtzoff, Federal Practice and Procedure; and the Restatement of Conflict of Laws; for example) do not narrow the language of the statute in their comments and applications. Fourth, § 1963 appears to be broader in its language and scope than a mere “ministerial” or enforcement aid and has some substantive aspect as opposed to being exclusively procedural in character. Stanford, 341 F.2d at 270-71.

Moreover, without attempting to reconcile the conflicting language used by the two federal district courts in Juneau Spruce Corp. v. International Longshoremen’s & Warehousemen’s Union (N.D.Cal. 1955), 128 F.Supp. 715; and Juneau Spruce Corp. v. International Longshoremen’s & Warehousemen’s Union (D. Hawaii 1955), 128 F.Supp 697, Judge Blackmun, nevertheless, found the actual holdings of those two cases — that timely registration opens the way to enforcement procedure in the registration court — were consistent with the court’s decision in Stanford. Stanford 341 F.2d at 268-69.

Finally, Marx v. Go Pub. Co., Inc. (9th Cir. 1983), 721 F.2d 1272, is consistent with Stanford in holding that registration under § 1963 creates a new judgment. As the majority points out, Montana had not in 1987 yet adopted the registration procedures under the Uniform Enforcement of Foreign Judgments Act. The only conclusion that I can draw from that statement in reference to this issue is that if the Uniform Act had been in effect in 1987, then a federal court looking to Montana law (i.e. the Uniform Act) would have concluded that registration of a foreign judgment in Montana under that Act would have created a “new” Montana judgment. In that I agree.

Moreover, that conclusion is consistent with the Montana law that was in effect in 1987. Specifically, § 27-2-201, MCA, did (and still does) permit actions on judgments of federal and state courts of record to be commenced in Montana within 10 years from the date of entry of the judgment. Section 27-2-201(1), MCA. Nothing in that section or in our case law indicates that in Montana a judgment obtained by suing out federal or sister state court judgment would not be a “new” judgment for all purposes. In fact, our current case law compels the opposite conclusion. See Welch v. Huber (1993), 262 Mont. 114, 862 P.2d 1180; and Jones v. Arnold (1995), 272 Mont. 317, 900 P.2d 917, 924, which indicate that, as to domestic judgments, a judgment obtained through an action on a judgment is a “new” judgment.

Furthermore, § 25-9-303, MCA, discussed in our opinion also lends support to the conclusion that registration creates a “new” judgment for execution purposes. Section 25-9-303(1), MCA, provides, in pertinent part that:

From the time of the filing [of the federal court judgment with the clerk of the state district court], the judgment becomes a lien upon all real property of the judgment debtor that is not exempt from execution in the county and ... the lien continues for 6years unless the judgment is previously satisfied. [Emphasis added.]

I suggest that it is more than mere coincidence that the time period during which the judgment lien is in effect on filing of the federal court judgment in state court under this statute, is exactly the same time period as the judgment lien for “new” judgments docketed with the clerk of court. See § 25-9-301(2), MCA. If the filing of the federal court judgment in state court did not create a “new” judgment, then the statute could not provide unequivocally for a full 6-year judgment lien. Rather, the length of the lien from the state court filing would be dependent upon the running of some other time period which commenced when the federal judgment was originally issued.

Accordingly, until our decision here, I suggest that a federal court that looked to Montana law in general and to §§ 27-2-201(1) and 25-9-303(1), MCA, in particular, to determine whether registration under § 1963 created a new judgment in this state, would likely have come to the same conclusion as did the court in Marx.

At least until this case, it appears that the registration of or suing out of a foreign federal or state court judgment in Montana would create a “new” judgment in this state. The same is true of a Montana federal court judgment transferred by filing of a transcript of judgment in the state district court. The mischief in our decision here is that, now, execution in Montana on a whole class of judgments originating in other jurisdictions must henceforth be accomplished, not in accordance with time limits clearly established in Montana law, but rather, in reference to time limitations established in the originating states. Accordingly, I would hold that under § 1963, a new judgment was created when the Wyoming federal court judgment was registered in Montana federal district court on August 1, 1989, and I dissent from our conclusion to the contrary.

JUSTICE GRAY joins in the foregoing special concurrence and dissent.

JUSTICE LEAPHART,

dissenting.

I concur with the Court’s holding in issues one and two, and specially concur in issue four. However, I dissent from our holding in issue number three that § 25-9-303(1), MCA, provides an alternative method for filing a judgment of a Montana Federal District Court in a Montana State Court in addition to the procedure provided for in the Uniform Enforcement of Foreign Judgments Act, §§ 25-9-501 through -508, MCA. Section 25-9-303(1), MCA, predates the Uniform Act. It provides that a foreign judgment may be filed in Montana State Court by the filing of a “transcript of the original docket of a judgment.” The Uniform Act, passed in 1989, provides that a foreign judgment is filed in Montana State Court by the filing of an authenticated copy of the foreign judgment with the clerk of the district court. Section 25-9-503, MCA. Thus, § 25-9-303(1), MCA, conflicts with the Uniform Act requirement that an authenticated copy of the judgment be filed. I would hold that the Uniform Act impliedly repeals the inconsistent provisions of the prior law.

Generally, repeal by implication is not favored unless the statutes in question are irreconcilable. W.R. Grace & Co. v. Department of Revenue (1989), 238 Mont. 439, 450, 779 P.2d 470, 476, cert. denied, 493 U.S. 1094, 110 S.Ct. 1169, 107 L.Ed.2d 1071 (1990); Montana Power Co. v. Public Serv. Comm’n (1984), 214 Mont. 82, 93, 692 P.2d 432, 437-38; State ex rel. Sol v. Bakker (1982), 199 Mont. 385, 392, 649 P.2d 456, 460. However, such repeal is necessary if the statutes are irreconcilable and if repeal will give effect to the obvious legislative intent expressed in passing the newer and more comprehensive act. State v. Carisch Theatres, Inc. (1977), 172 Mont. 453, 458, 564 P.2d 1316, 1319.

In many instances, this Court has held that the passage of comprehensive uniform legislation repeals conflicting provisions of earlier law. See, e.g., In re Holmes (1979), 183 Mont. 290, 298, 599 P.2d 344, 348 (holding that the Uniform Probate Code impliedly repealed the Mortmain Statute); Carisch Theatres, 564 P.2d at 1319 (holding that a comprehensive movie theater licensing act impliedly repealed an earlier conflicting licensing scheme); State v. Langan (1968), 151 Mont. 558, 564, 445 P.2d 565, 569 (holding that the Uniform Drug Act superseded prior search and seizure statutes).

Montana is not alone in following this rule of statutory construction. See Peter v. State (Alaska 1975), 531 P.2d 1263; Dairyland Ins. Co. v. Rose (N.M. 1979), 591 P.2d 281, 284; Rivera v. District Court (Okla. 1993), 851 P.2d 524, 527. In Peter, the Supreme Court of Alaska held that the Uniform Alcoholism and Intoxication Treatment Act repealed by implication an earlier statute prohibiting a person from being intoxicated while upon or along a highway. Peter, 531 P.2d 1263. The Peter court recognized two categories of repeal by implication:

There are two well-settled categories of repeals by implication: (1) where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act.

Peter, 531 P.2d at 1267 (citations omitted).

Both rationales apply to the instant case. First, § 25-9-503, MCA, establishes a new and different method of filing a foreign judgment; an authenticated copy of the judgment as opposed to a transcript of the original docket pursuant to § 25-9-303(1), MCA. It only makes sense that there should be just one acceptable method of filing foreign judgments, otherwise there was no point to the passage of the Uniform Act. The Uniform Act and § 25-9-303(1), MCA, are irreconcilable, therefore § 25-9-503, MCA, impliedly repeals § 25-9-303(1), MCA.

Second, as a Uniform Act, the Uniform Enforcement of Foreign Judgments Act covers the whole subject area and was clearly intended as a substitute. Repeal by implication is particularly compelling in the case of a subsequent Uniform Act because one of the primary purposes in adopting a Uniform Act is to bring the law of the State of Montana into conformity with the laws of the other states adopting the same Uniform Act. See, e.g., §§ 25-9-508, 25-9-609, 25-9-715, MCA.

The Uniform Enforcement of Judgments Act does provide for an “optional procedure” whereby a judgment creditor’s right to bring an action to enforce his judgment instead of proceeding under the Uniform Act “remains unimpaired.” Section 25-9-507, MCA. Significantly, the Uniform Act does not provide that the prior provision allowing the filing of a transcript pursuant to § 25-9-303(1), MCA, remains unimpaired as an option. The Court, in allowing the bank to pick and choose between compliance with the Uniform Act and the conflicting provisions of § 25-9-303(1), MCA, has defeated the whole goal of uniformity as set forth in § 25-9-508, MCA.

I conclude that the District Court erred in finding that the Bank was not required to follow the Uniform Act in registering the judgment in Montana State District Court.

JUSTICE TRIEWEILER joins in the foregoing dissent of Justice W. William Leaphart.


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DEAN GARY CHRISTENSEN, Defendant and Appellant.
    No. 95-292.
    Submitted on Briefs November 30, 1995.
    Decided December 19, 1995.
    52 St.Rep. 1254.
    907 P.2d 970.
    274 Mont. 326.

      For Appellant: Laura Christoffersen, Christoffersen & Knierim, Wolf Point.
    For Respondent: Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena; Steven Howard, Sheridan County Attorney, Plentywood.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Dean Gary Christensen appeals from the order of the Fifteenth Judicial District Court, Sheridan County, dismissing his petition for post-conviction relief.

We affirm.

The dispositive issue on appeal is whether Christensen’s petition for post-conviction relief is procedurally barred by § 46-21-105(2), MCA.

In May of 1991, Christensen was arrested and charged with reckless driving and operation of a motor vehicle by a habitual traffic offender. After a bench trial on December 23, 1991, the District Court found Christensen guilty of both charges, and Christensen did not appeal his conviction.

In his petition for post-conviction relief, Christensen contended that he had never waived his constitutional right to a jury trial. He further contended that he did not appeal this issue within the statutorily mandated period because both his attorney and the judge wrongly told him that no appeal could be taken from a city court bench trial.

Christensen filed a petition for post-conviction relief after the time allotted for direct appeal had elapsed. His petition for post-conviction relief initially was dismissed on different procedural grounds. Christensen appealed that dismissal to this Court, and we remanded the matter to the District Court for farther proceedings. See State v. Christensen (1994), 265 Mont. 374, 877 P.2d 468.

After an April 5, 1995 hearing, the District Court found that Christensen had knowingly waived his right to a trial by jury. The court further found that Christensen had been properly advised of his right to appeal the issue but chose not to do so. The District Court therefore dismissed Christensen’s petition, and Christensen appeals.

A convicted defendant who believes he received a sentence which is invalid for jurisdictional, constitutional, or other legal reasons may file a petition for post-conviction relief. Section 46-21-101, MCA. However, § 46-21-105(2), MCA, provides:

When a petitioner has been afforded a direct appeal of the petitioner’s conviction, grounds for relief that could reasonably have been raised on direct appeal may not be raised in the original or amended petition [for post-conviction relief].

Citing this statute, the State contends that Christensen may not petition for post-conviction relief based on his allegation that he had not waived his right to a jury trial, because this issue could have been raised by a direct appeal.

Christensen contends that he did not address the issue in a direct appeal because both his lawyer and the presiding judge told him that he had no right to appeal a city court bench trial. Christensen asserts that by the time he found out he had a right to appeal his city court conviction, the time allotted for an appeal had passed. The State denied that Christensen was ever told by either his attorney or the judge that he had no right to appeal.

The standard of review of a district court’s denial of a petition for post-conviction relief is whether substantial evidence supports the court's findings and conclusions. State v. Baker (1995), [272 Mont. 273], 901 P.2d 54, 58; State v. Coates (1990), 241 Mont. 331, 336, 786 P.2d 1182, 1185. Because the statements of the appellant, his attorney and the presiding judge at the city court where he was convicted are in direct conflict, the District Court was required to determine the credibility of the witnesses and to rule accordingly. We have noted that “[i]f the evidence conflicts, it is within the province of the trier of fact to determine which shall prevail.” State v. Medina (1990), 245 Mont. 25, 33, 798 P.2d 1032, 1038 (citing State v. Brown (1989), 239 Mont. 453, 781 P.2d 281). Further, the determination of the trier of fact regarding the credibility of witnesses will not be disturbed on appeal. State v. Moreno (1990), 241 Mont. 359, 361, 787 P.2d 334, 336.

At the hearing on the post-conviction petition, the District Court heard testimony from Christensen, the attorney, and the city court judge. The District Court found the testimony of the attorney and the judge to be more credible than Christensen’s, and further found that Christensen had been properly advised of his right to appeal. Christensen points to no evidence which would indicate that the District Court’s determination regarding credibility was erroneous. We see no error in the District Court’s findings. Since Christensen could have raised this issue in a direct appeal, he is prohibited by § 46-21-105(2), MCA, from raising it in a post-conviction petition.

Christensen further argues that the procedural bar of § 46-21-105(2), MCA, is not absolute. He contends that arguments in favor of its imposition are “technical” and “esoteric,” and that this Court should refuse to impose the bar if a constitutional right is potentially at risk.

The procedural bar set out in § 46-21-105(2), MCA, serves to prevent abuses of the post-conviction process and to preserve the integrity of the trial and the direct appeal procedure. In re Petition of Manula (1993), 263 Mont. 166, 866 P.2d 1127. Because the procedural bar is mandated by statute, it is not something we may impose or decline to impose at will. However, this Court may refuse to apply the procedural bar if a petitioner “can demonstrate a fundamental miscarriage of justice.” Baker, 901 P.2d at 59.

Christensen must demonstrate a fundamental miscarriage of justice; it is not enough merely to allege one. In this case, the District Court found that Christensen knew of his right to appeal but chose not to do so. Christensen points to no evidence which indicates that this factual finding of the District Court was erroneous. He has not shown that application of the procedural bar has or would result in a fundamental miscarriage of justice. Accordingly, the dismissal of his petition for post-conviction relief is affirmed.

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