author: JUSTICE LEAPHART

text:
    IN RE THE MARRIAGE OF MARTIN PAUL GRIFFIN, Petitioner, Respondent and Cross-Appellant, and NANCY LIEN GRIFFIN, Respondent and Appellant.
    No. 95-258.
    Submitted on Briefs December 21, 1995.
    Decided January 17, 1996.
    53 St.Rep. 28.
    275 Mont. 37.
    909 P.2d 707.

      For Appellant: Edmund P. Sedivy, Jr.; Morrow, Sedivy & Bennett, Bozeman.
    For Respondent: John S. Warren; Schulz, Davis & Warren, Dillon.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Nancy Lien Griffin appeals, and Martin Griffin cross-appeals, from the June 16, 1994, Findings of Fact, Conclusions of Law and Partial Judgment and the December 2, 1994, Order and Final Judgment of the Fifth Judicial District Court, Beaverhead County, regarding the distribution and valuation of the marital estate, a business owned by the parties, and child support. We affirm in part, reverse in part, and remand.

We consider the following issues on appeal:

1. Did the District Court err in making its determination of the option purchase price set for the parties’ business?

2. Did the District Court err in granting Nancy a new option to purchase the parties’ business?

3. Did the District Court err in not ordering Martin to return the vacation pay?

4. Did the District Court err in its determination of back child support?

5. Did the District Court err in allowing certain items of personal property to remain in Martin’s possession?

6. Did the District Court err in determining that Martin did not have to indemnify Nancy with regard to two claims asserted against the parties’ business?

7. Did the District Court err in requiring Martin to return the condemnation proceeds he received from the State of Montana to the parties’ business?

Martin Griffin (Martin) and Nancy Lien Griffin (Nancy) were married on February 4, 1978. Four children were born of the marriage. During their marriage, the parties established and operated the Madison Lumber Company (MLC). The parties’ marriage was dissolved in 1991 and Martin and Nancy were granted joint custody of the children, with Nancy designated as the primary residential custodian. In the Decree, Martin was awarded MLC while Nancy was granted a 180-day option to purchase MLC. Both parties appealed from the District Court’s determination. In re Marriage of Griffin (1993), 260 Mont. 124, 860 P.2d 78. This is the parties’ second appeal arising out issues raised in their dissolution of marriage. In the first appeal, we remanded the case to the District Court for findings regarding the option contract to purchase MLC, a determination of child support due under the Uniform Child Support Guidelines, and valuation of certain items in the marital estate. Marriage of Griffin, 860 P.2d at 84-86. A complete discussion of the facts underlying this dispute is set forth in this Court’s opinion in the first appeal. Marriage of Griffin, 860 P.2d at 80-84.

Following the first appeal, on remand, Nancy filed a motion for summary judgment attempting to exercise her option to purchase MLC. The District Court denied her motion and set the matter for a hearing on April 26, 1994. After hearing testimony from a business appraiser, the District Court entered its Findings of Fact, Conclusions of Law and Partial Order on June 16, 1994. The District Court determined that Nancy should have the opportunity to purchase the business for $323,305. Nancy exercised her option to purchase MLC and, on August 17, 1994, took control of MLC.

1. Did the District Court err in making its determination of the option purchase price set for the parties’ business?

Nancy alleges that the District Court made mathematical and accounting errors in determining the $323,305 option price set for MLC. However, we note that Nancy voluntarily exercised her option to purchase MLC and paid the amount set by the District Court. In exercising her option, she voluntarily complied with the District Court’s order. Where a party has voluntarily complied with a judgment or court order, as Nancy did in exercising her option, that party can be deemed to have waived objection to that aspect of the judgment or court order. Turner v. Mountain Eng’g and Constr., No. 95-329, slip op. at 7 (Mont. Jan. 11, 1996) (citing State ex rel. Hagerty v. Rafn (1956), 130 Mont. 554, 557-58, 304 P.2d 918, 920-21). In so complying, Nancy has waived her objection and cannot now proceed inconsistently in pursuing an appeal as to the option price. See Turner, No. 95-329, slip op. at 11 (Mont. Jan. 11,1996) (citing Martin Dev. Co. v. Keeney Co. (1985), 216 Mont. 212, 220, 703 P.2d 143, 147-48). If Nancy objected to the valuation of MLC, she should not have exercised her option to purchase MLC based upon that valuation. In paying the amount set by the District Court, Nancy negated any alleged error in the valuation of MLC. Turner, No. 95-329, slip op. at 6 (Mont. Jan. 11, 1996) (citing Gates v. Deukmejian (9th Cir. 1993), 987 F.2d 1392, 1408). That is, she is deemed to have waived any objection to the option price. Accordingly, we do not consider the merits of Nancy’s argument that the District Court over-valued MLC.

2. Did the District Court err in granting Nancy a new option to purchase the parties’ business?

In his cross-appeal, Martin alleges that the District Court erred in granting Nancy a new option to purchase MLC. Based on the foregoing reasoning, Martin can also be said to have waived any objection to the option contract when he allowed the transaction to proceed. Turner, No. 95-329, slip op. at 6 (Mont. Jan. 11, 1996). Even assuming the District Court exceeded the scope of its jurisdiction on remand, Martin waived any objection by not raising this issue at the District Court. Instead, Martin accepted the $323,305 and transferred his stock in MLC. Thus, we do not consider whether the District Court abused its discretion in granting Nancy a new option to purchase MLC.

3. Did the District Court err in not ordering Martin to return the vacation pay?

On August 1, 1994, just prior to Nancy’s taking control of MLC, Martin withdrew $3,000 from MLC which he argues he was entitled to as vacation pay. Nancy asserts that Martin was not authorized to make such a withdrawal from MLC and disburse it to himself and, further, that the withdrawal was in violation of the District Court’s earlier order which required Martin to properly manage MLC during the pendency of the proceedings. Nancy filed a motion to declare Martin in contempt on September 6, 1994.

Evidence regarding the vacation pay issue was presented at a hearing held on November 30,1994. However, in its Order and Final Judgment and Decree of December 2, 1994, the District Court made no ruling regarding Martin’s withdrawal of the $3,000 in vacation pay. Thus, from the record, we are unable to determine whether the District Court abused its discretion in not requiring Martin to return the $3,000 of vacation pay. See In re Marriage of Smith (1995), 270 Mont. 263, 267-68, 891 P.2d 522, 525. Accordingly, we remand this issue to the District Court to determine whether Martin was entitled to the vacation pay.

4. Did the District Court err in its determination of back child support?

In reviewing a district court’s award of child support, we consider whether the district court abused its discretion. In re Marriage of DeWitt (1995), [273 Mont. 513], 905 P.2d 1084, 1086 (citing In re Marriage of Craib (1994), 266 Mont. 483, 490, 880 P.2d 1379, 1384). In the first appeal, we remanded the issue of child support to the District Court to determine Martin’s child support obligation under the Uniform Child Support Guidelines. Marriage of Griffin, 860 P.2d at 88. On remand, the District Court referred the determination and calculation of child support to Ann Steffens, a child support guidelines specialist with Guidelines Consulting, ordering her to apply the guidelines and submit her recommendation to the court.

Nancy now asserts that the amounts listed on MLC’s financial statements as “shareholder loans” should have been included in Martin’s income in computing the amount of child support due under the guidelines. We agree. The monies withdrawn as “shareholder loans” from MLC, along with materials taken from MLC’s inventory, were taken for Martin’s personal use. Thus, these amounts should have been included in Martin’s gross income for purposes of computing his child support obligation. We note that income includes “expense reimbursements or in-kind payments received by the parent in the course of self-employment or operation of a business if such reimbursements or in-kind payments reduce personal living expenses.” 46.30.1508(l)(b), ARM. Accordingly, the full amounts of the “shareholder loans” and materials taken from MLC inventory should have been listed as other income on Martin’s child support worksheets. We remand for a determination of the child support due when all of Martin’s income, including the shareholder loans and materials taken from MLC, is included in the computation.

5. Did the District Court err in allowing certain items of personal property to remain in Martin’s possession?

The standard of review of a district court’s division of marital property is whether the district court’s findings of fact are clearly erroneous. Marriage of DeWitt, 905 P.2d at 1087 (citing Marriage of Smith, 891 P.2d at 525); In re Marriage of McLean (1993), 257 Mont. 55, 61, 849 P.2d 1012, 1015. Where substantial credible evidence supports the court’s findings and judgment, this Court will not alter the district court’s decision unless there is an abuse of discretion. In re Marriage of Maedje (1994), 263 Mont. 262, 266, 868 P.2d 580, 583.

In the original Findings of Fact and Conclusions of Law, dated November 14, 1991, Nancy was awarded the “contents of the family home” listed at a value of $20,290. In this appeal, Nancy asserts that the award was to include certain items of property, namely: an acoustic guitar, stationary bicycle, raft, mountain bike, children’s ski gear, cabinets, and a stereo system. Martin counters that at the time of the 1991 order and decree that these items were not located at the family home, rather, they were in his possession or at a condominium located at Big Sky, Montana. Nancy values this property at $8,100, however, from the record it is not clear whether that was the value of the property in 1991 or at the time of the hearing. The District Court noted that most of the items at issue were of inconsequential value. Essentially, Nancy argues that she has not received $8,100 of the $20,290 in property that she was awarded. Martin asserts that these items were not “contents of the family home,” and, alternatively, that the distribution of the marital property was equitable.

We note that the district court has broad discretion in distributing the marital assets and this Court will not disturb an equitable apportionment of the marital assets when it is clear that the district court was acting within its discretion. In re Marriage of Danelson (1992), 253 Mont. 310, 319, 833 P.2d 215, 221. Here, the District Court ordered that the children’s ski gear should be delivered to the children, however, the court did not compel Martin to return the remainder of the items to Nancy. Finally, we note that in Nancy’s original proposal for distributing the marital estate, Martin would have been awarded each of the items now at issue. From the record it is clear that the District Court was acting within its discretion and the distribution of the marital estate was not clearly erroneous.

6. Did the District Court err in determining that Martin did not have to indemnify Nancy with regard to two claims asserted against the parties’ business?

At the time Nancy exercised her option to purchase MLC, one lawsuit was pending against MLC and a second suit was filed on November 16,1994. Both suits arise out of events that occurred while Martin was in control of MLC. Nancy argues that these contingent liabilities were not considered in the appraisals of MLC and, as a result, MLC was overvalued. The first suit sought $20,035, however, it has now been dismissed with prejudice. The second suit seeks $27,850 plus interest and attorney’s fees.

In its Final Judgment and Decree of December 2,1994, the District Court stated “[s]hould any judgments be rendered against Madison Lumber Company in those two suits, such judgments are valid liabilities against the Company, and Nancy purchased the Company’s liabilities as well as its assets.” We agree with the District Court. In any event, we note that the first claim has been dismissed with prejudice. Based upon the evidence before the District Court, it was within the court’s broad discretion to deny Nancy’s motion for indemnification. As the District Court noted, Nancy purchased the assets of the corporation as well as its liabilities.

7. Did the District Court err in requiring Martin to return the condemnation proceeds he received from the State of Montana to the parties’ business?

In reviewing a district court’s findings of fact, we determine whether the findings are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906 (citing Columbia Grain Int’l v. Cereck (1993), 258 Mont. 414, 417, 852 P.2d 676, 678). We have adopted a three-part test to determine whether findings are clearly erroneous. Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. The test provides that: (1) the Court will determine whether the findings are supported by substantial evidence; (2) if the findings are supported by substantial evidence, the Court will determine if the district court has misapprehended the evidence; and (3) if the findings are supported by substantial evidence and that evidence has not been misapprehended, this Court may still find that a finding is “clearly erroneous when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.” DeSaye, 820 P.2d at 1287 (citing United States v. United States Gypsum Co. (1948), 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746).

In 1992, the State of Montana condemned .14 acres of MLC’s land to widen a highway. MLC was paid $7,500 by the State for this condemnation, a portion of the proceeds was allocated to the taking of the .14 acres and the remainder was allocated to site improvements, including a new gravel area and fence. However, instead of depositing the $7,500 in an MLC account, Martin endorsed the check and gave it to his father in partial payment for a motor home that Martin had lived in for one and one-half years. Nancy alleged that the condemnation proceeds were the property of MLC and, as such, should be returned so that the visibility of and access to MLC, which had been impaired by the widening of the highway, could be restored. The District Court agreed, determining that the proceeds were property of MLC and should be returned. Substantial evidence supports the District Court’s determination that the condemnation proceeds should be returned to MLC. Accordingly, we affirm the District Court on this issue.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, HUNT and ERDMANN concur.


source: Caselaw Access Project

author: JUSTICE ERDMANN

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. SHAWN MATTHEW CLINE, Defendant and Appellant.
    No. 93-558.
    Submitted on Briefs December 7, 1995.
    Decided January 18, 1996.
    53 St.Rep. 32.
    275 Mont. 46.
    909 P.2d 1171.

      For Appellant: Herman A. Watson, HI, Watson & Watson, Bozeman.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena; Mike Salvagni, Gallatin County Attorney, Marty Lambert, Deputy County Attorney, Bozeman.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

Defendant Shawn Matthew Cline appeals from a jury verdict of the Eighteenth Judicial District Court, Gallatin County, finding him guilty of robbery, aggravated assault, and burglary. We reverse and remand.

The issues on appeal are as follows:

1. Did the District Court err in denying Cline’s motion for a new trial based on newly discovered evidence?

2. Did the District Court err in admitting expert testimony concerning the age of Cline’s fingerprint?

3. Did the District Court err in allowing testimony concerning the origin of tire tracks at the crime scene?

Our holding on Issue 1 is dispositive. As we are remanding to the District Court for a new trial, we address the evidentiary matters raised in Issues 2 and 3.

FACTS

At approximately 4:40 a.m. on the morning of October 12, 1992, Jim Storey went to the Kountry Korner Cafe west of Bozeman in order to prepare the cafe for opening. Storey is a local farmer-rancher who had been given the key to the cafe by the owner, Betty Nason in order to turn on the grills and make coffee prior to the cafe’s 6:00 a.m. opening.

As Storey approached the back of the cafe, he noticed there was a hole in the door where the deadbolt had been. He heard an acetylene torch burning as he entered the cafe and saw an acetylene torch tank on a cart with hoses leading into the office. Storey tried to get into the office but could not open the door. He stepped back from the door and said “Get the hell out of there.” A few seconds later a man came out of the office holding his hand in front of his lower face. Storey described the man as somewhat shorter than himself with long, dark brown hair. The man approached Storey, struck him on the head with a hammer and fled the scene.

When Storey regained consciousness he called 911. He was taken to a Bozeman hospital and later flown to Billings for treatment. Based on Storey’s description of the assailant, Lieutenant Robert Christie of the Gallatin County Sheriff’s Department assembled a photo line-up which he showed to Storey in the hospital. The line-up included a photo of the defendant, Shawn Matthew Cline. Storey covered the lower portion of each face and then identified Cline based on his hairstyle and eyes. At trial, Storey testified that Cline’s hairstyle and build were similar to his assailant’s, but he could not make a positive identification.

The sheriff’s office was -unable to obtain identifiable latent fingerprints from the crime scene. Nason discovered that the cash drawer had been damaged in the burglary and would not fit back into the cash register. She ordered a new cash drawer and removed the register and old drawer to a storage shed behind the cafe. When the new cash drawer arrived it did not have a money tray so Nason retrieved the tray from the old drawer. At that point she discovered an envelope underneath the money tray which had not been found by the sheriff’s deputies. The envelope was used to keep deposits for pie tins when customers purchased pies. Using a magnetic powder, Christie was able to raise a latent fingerprint from inside the flap of the envelope. The print was that of Cline’s right thumb.

When interviewed by Christie, Cline stated that he had previously washed dishes at the cafe but had not worked there in over a year. He indicated he had not been in the cafe for two or three months. He said he had never taken any money from customers and had never entered the till. He could think of no reason why his fingerprint would be on the envelope. Nason confirmed that Cline had washed dishes a few times at the cafe but that he had no reason to work the cash register or handle money, including that involved with the pie tin deposit envelope.

Cline contacted Christie after the initial interview and told him that he had given his sister-in-law, Roxanne Cline an envelope not long before the burglary. Roxanne worked at the cafe and Cline claimed this could explain the presence of his fingerprint on the envelope. Roxanne testified that Cline had never given her an envelope. Cline also claimed he had first learned of the burglary while stopping at a service station across the street from the cafe on the morning of the crime. The owner of the service station testified that he did not see or talk with Cline that morning.

On November 16, 1992, Cline was charged with robbery pursuant to § 45-5-401, MCA (1991), aggravated assault pursuant to § 45-5-202, MCA (1991), and burglary pursuant to § 45-6-204, MCA (1991). Cline relied on an alibi defense, claiming he had spent the early morning hours of October 11-12,1992, with his wife, her brother, and a young friend.

Cline’s first trial concluded on April 2, 1993, when the jury was unable to reach a verdict. On July 6, 1993, a second jury trial was commenced, and on July 12, 1993, the jury found Cline guilty on all three charges. On September 7, 1993, the District Court sentenced Cline to ten years imprisonment on each count to run concurrently, with three years suspended. The District Court added five years on each count to run consecutively for the use of a dangerous weapon.

On September 29, 1993, Cline filed a notice of appeal with this Court. On February 18, 1994, Cline filed a motion to stay the appeal and requested this Court to remand the case to the District Court for a determination as to whether he would be entitled to a new trial based on newly discovered evidence. In his motion, Cline alleged that a previously unknown witness had voluntarily come forward with information exculpating him (Cline) from the crimes. On March 15, 1994, we granted Cline’s motion and remanded the case to the District Court for a hearing on the newly discovered evidence.

On July 8 and 12, 1994, the District Court conducted hearings on Cline’s motion for discovery of the new evidence. On August 6, 1994, Cline filed a motion with the District Court for a new trial based on the newly discovered evidence. On September 8, 1994, the District Court conducted a hearing on the matter and on January 11, 1995, denied Cline’s motion for a new trial. This appeal followed.

ISSUE 1

Did the District Court err in denying Cline’s motion for a new trial based on newly discovered evidence?

Granting or denying a motion for a new trial is within the discretion of the district court. Section 46-16-702, MCA; State v. Gambrel (1990), 246 Mont. 84, 91, 803 P.2d 1071, 1076. In State v. Lewis (1978), 177 Mont. 474, 483, 582 P.2d 346, 351, we held that “[t]he matter of granting or refusing a new trial for newly discovered evidence rests largely in the discretion of the District Court.” (Citing Butler v. Paradise Valley Irr. Dist. (1945), 117 Mont. 563, 160 P.2d 481). Based on the nature of the newly discovered evidence, we must determine whether the District Court abused its discretion in denying Cline’s motion for a new trial.

After Cline’s conviction he became aware that another individual had allegedly admitted to committing the offenses for which he had been convicted. On February 18, 1994, Dwaine Cline, Cline’s cousin who was serving a sentence for misdemeanor theft, filed a sworn affidavit indicating that James Leroy Smith, a convicted felon, had told him that he (Smith) had committed the Kountry Komer Cafe burglary, robbery and assault on October 12,1992. Dwaine also stated in his affidavit that Sergeant Robert Campbell of the Gallatin County Sheriff’s Department had told him that he had received information from a reliable source in Billings that Smith was the one who had broken into the Kountry Komer Cafe.

Campbell testified at the hearing in July 1994 that in October 1993 he had received information from a private detective, Charles Easterday, indicating that word was out that Smith was involved in the Kountry Korner Cafe crimes. Easterday told Campbell that his source for the information was Harold Lesh, an informant previously used by the Sheriff’s Department. Lesh was unavailable to testify by the time the hearings were conducted in July and September 1994. Campbell testified that he had also received a second telephone call from an anonymous source at about the same time indicating that Smith was involved in the Kountry Komer Cafe robbery. Easterday testified at the hearing on the new trial motion that an unidentified customer of a Bozeman pawn shop told him that Smith had committed the crimes for which Cline had been convicted.

In summary months after his conviction in July 1993, Cline uncovered four sources — Dwaine Cline, Campbell, Lesh, and Easter-day — all providing information that Smith had committed the crimes for which Cline had been convicted and sentenced. Faced with this new evidence, Cline requested that this Court stay his appeal and filed a motion for discovery seeking details on the exculpatory information which Cline believed the authorities possessed. The county attorney responded in writing to Cline’s request by stating “there is absolutely nothing exculpatory for your client....” The State’s position was and still is that the newly discovered evidence merely suggests an additional suspect and does not exculpate Cline.

The District Court relied on our long-standing criteria set forth in State v. Greeno (1959), 135 Mont. 580, 342 P.2d 1052, to evaluate Cline’s motion for a new trial based on the newly discovered evidence. The Greeno criteria are: (1) the evidence must have come to the knowledge of the defendant since trial; (2) it was not through want of diligence that the evidence was not discovered earlier; (3) the evidence is so material that it would probably produce a different result upon another trial; (4) the evidence is not merely cumulative — that is, it does not speak as to facts in relation to which there was evidence at trial; (5) the motion for new trial must be supported by the affidavit of the witness whose evidence is alleged to have been newly discovered, or its absence accounted for; and (6) the evidence must not be such as will only tend to impeach the character or credit of a witness. All six criteria must be met or the defendant’s motion will fail. State v. Arlington (1994), 265 Mont. 127, 149, 875 P.2d 307, 320, (citing State v. Cyr (1987), 229 Mont. 337, 340-41, 746 P.2d 120, 122-23).

The District Court determined that Cline’s newly discovered evidence satisfied criteria 1, 2, and 5, and that criteria 6 was not applicable. The court concluded, however, that the evidence failed to meet the requirements of criteria 3 and 4.

In evaluating criteria 3, the District Court determined that the proposed evidence was not so material that it would probably produce a different result at a new trial. The court noted that the anonymous telephone call to Campbell and the information from the unidentified man who spoke with Easterday in the pawn shop was hearsay. The court acknowledged that Smith’s alleged confession of the crimes might be admissible as a prior inconsistent statement under Rule 801(d)(1)(A), M.R.Evid., if he denied such an admission at a new trial. Nevertheless, the District Court determined that such testimony would merely present the jury with the task of determining and weighing the credibility of those who might testify. The court concluded that Dwaine was not a credible witness and that neither his testimony nor that of Smith and/or Lesh was so material that it would result in Cline’s acquittal at a new trial.

In evaluating criteria 4, the District Court determined that evidence indicating Smith committed the crimes would merely be cumulative evidence of Cline’s denial of the charges. The court determined that Cline did not demonstrate that the new evidence “does not speak as to facts in relation to which there was evidence at trial.” (Citing Greeno, 342 P.2d at 1055.)

We do not agree with the District Court’s conclusion that the newly discovered evidence fails to satisfy criteria 3 and 4 of the Greeno test. The new evidence, discovered well after trial due to no lack of due diligence on Cline’s part, is more than cumulative of what was presented to the jury. Smith’s purported confession and the other evidence which points to his commission of the crimes is new and distinct from any evidence presented at trial. The new evidence tends to exculpate Cline and speaks to facts which were not evident at trial. While we agree with the District Court that essentially it may boil down to a question of witness credibility, such a determination should remain within the province of the jury and not the court.

The jury in Cline’s first trial could not reach a verdict based on the evidence presented. The jury in the second trial convicted Cline based on circumstantial evidence, except for Cline’s fingerprint on the deposit envelope, and despite the fact that Storey was unable to make a positive identification of the perpetrator. Subsequent to the second trial, Cline obtained newly discovered evidence material to his case and exculpatory in nature which the jury did not have the opportunity to consider in reaching its verdict. The newly discovered evidence is so material that it would probably, albeit not necessarily, produce a different result at another trial.

We determine that the newly discovered evidence satisfies all six Greeno criteria, and therefore, we conclude that the District Court abused its discretion in denying Cline’s motion for a new trial. Accordingly, we reverse the District Court on this issue and on this basis remand the case to the District Court for a new trial.

ISSUE 2

Did the District Court err in admitting expert testimony concerning the age of Cline’s fingerprint?

During the second trial, the District Court allowed Michael Wieners, a FBI fingerprint technician, to testify as to the age of Cline’s fingerprint found on the pie tin deposit envelope. Wieners testified that “I think this is a fresh latent print probably about a month or two old. But, again, there is leeway either way.” Cline claims that because there is no reliable scientific procedure to evaluate the age of a fingerprint, Wieners’ testimony significantly undermined his defense theory that the fingerprint was laid prior to the break-in under innocuous circumstances unrelated to the break-in.

Cline supports his position with an affidavit from Andre Moenssens, a law professor and consultant on fingerprint identification, whose opinion rebuts Wieners’ testimony that it is possible to determine the age of a fingerprint. Cline, however, presented Moenssens’ affidavit to the court after the trial in support of his motion for a new trial. The District Court refused to consider the information contained in the affidavit by concluding that Cline could have discovered the information through due diligence before or during trial. In any event, Cline argues on appeal that the prejudicial affect of Wieners’ testimony outweighed the probative value of the information. Cline further argues that Wieners’ testimony did not meet the criteria for the introduction of scientific evidence in criminal cases.

The State acknowledges that this Court has adopted the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), _ U.S. _, 113 S.Ct. 2786, 125 L.Ed.2d 469, in determining whether to allow expert testimony concerning novel scientific evidence. See State v. Weeks, (1995), 270 Mont. 63, 891 P.2d 477; State v. Moore (1994), 268 Mont. 20, 885 P.2d 457. However, the State correctly notes that Daubert was decided just prior to the commencement of Cline’s second trial. This Court did not formally adopt the Daubert standard until Moore was decided in November 1994, over a year after Cline was convicted. The State relies on State v. Walters (1991), 247 Mont. 84, 806 P.2d 497, and Barmeyer v. Montana Power Co. (1983), 202 Mont. 185, 657 P.2d 594, for its argument that the District Court did not abuse its discretion in allowing Wieners’ testimony.

This Court has adopted the general rule that judicial decisions are to be applied retroactively. McNeil v. Currie (1992), 253 Mont. 9, 830 P.2d 1241.

It must also be noted that we do not consider fingerprint evidence in general to be novel scientific evidence. However, in the present case the issue is whether it is possible to determine the age of a fingerprint utilizing magnetic powder. We apply the Daubert standard to this case because we consider fingerprint aging techniques in this context to be novel scientific evidence. Certainly all scientific expert testimony is not subject to the Daubert standard and the Daubert test should only be used to determine the admissibility of novel scientific evidence.

When we adopted the Daubert test in Moore, we specifically noted the continuing vitality of Barmeyer as that case pertained to the scientific evidence. In Barmeyer we held that “it is better to admit relevant scientific evidence in the same manner as other expert testimony and allow its weight to be attacked by cross-examination and refutation.” Barmeyer, 657 P.2d at 598 (quoting United States v. Baller (4th Cir. 1975), 519 F.2d 463, 466, cert. denied, 423 U.S. 1019, 96 S. Ct. 456, 46 L. Ed. 2d 391). In Barmeyer, we rejected the “general acceptance” test, holding that it was not in conformity with the spirit of the new rules of evidence. Barmeyer, 657 P.2d at 598.

In Daubert, the United States Supreme Court also rejected the “general acceptance” standard in favor of the more liberal test embodied in Rule 702, Fed.R.Evid. This test requires the trial judge to determine whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. Moore, 885 P.2d at 470 (citing Daubert, 113 S. Ct. at 2796). We noted that Rule 702, Fed.R.Evid., still requires the district court to screen such evidence to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. Moore, 885 P.2d at 470.

To guide the trial court’s assessment of the reliability of the scientific evidence offered, we adopted in Moore the following four nonexclusive factors: (a) whether the theory or technique can be and has been tested; (b) whether the theory or technique has been subjected to peer review and publication; (c) the known or potential rate of error in using a particular scientific technique and the existence and maintenance of standards controlling the technique’s operation; and (d) whether the theory or technique has been generally accepted or rejected in the particular scientific field. Moore, 885 P.2d at 470-71 (citing Daubert, 113 S. Ct. at 2796-97).

In adopting the Daubert test, we concluded that “before a trial court admits scientific expert testimony, there must be a preliminary showing that the expert’s opinion is premised on a reliable methodology.” Moore, 885 P.2d at 471. We noted, however, that such an inquiry must remain flexible.

“Not every error in the application of a particular methodology should warrant exclusion. An alleged error in the application of a reliable methodology should provide the basis for exclusion of the opinion only if that error negates the basis for the reliability of the principle itself.”

Moore, 885 P.2d at 471 (quoting United States v. Martinez (8th Cir. 1993), 3 F.3d 1191, 1198).

In this case, the State established the necessary foundation regarding the issue of determining the age of fingerprints. Wieners referenced and quoted a number of scientific treatises on fingerprint technology. The treatises established that while the age of a latent print cannot be established with complete accuracy, experienced examiners can proffer an opinion regarding the age of a latent print based on the examiner’s experience and investigation. The District Court, although not applying the Daubert criteria, correctly found that this was an area where experts could disagree, that the testimony would be subject to cross-examination, and that the credibility of the witnesses and the weight of their testimony should be for the jury to decide, not the court. Rulings on the admissibility of evidence are left to the sound discretion of the trial court. Moore, 885 P.2d at 471 (citing State v. Stewart (1992), 253 Mont. 475, 479, 833 P.2d 1085, 1087). We conclude that the District Court did not abuse its discretion in allowing Wieners’ testimony regarding the age of the fingerprint.

ISSUE 3

Did the District Court err in allowing testimony concerning the origin of tire tracks at the crime scene?

The determination of whether evidence is relevant and admissible is left to the sound discretion of the trial judge and will not be overturned absent a showing of abuse of discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263.

The State called Frank Kountz as a witness during trial. Kountz is the general manager of a garbage collection company which provided service to the Kountry Korner Cafe during October 1992. Kountz testified that his company uses twin axle garbage trucks which leave dual tire tracks on both sides of the vehicle. Kountz also testified on direct examination that his company serviced the cafe on Mondays and Fridays. The prosecutor asked no further questions of Kountz.

On cross-examination, Cline asked Kountz specifically about the morning of October 12, 1992. Kountz testified that he was not personally present when the truck made its stop and that he was relying on a company route sheet which had not been offered into evidence. Cline then objected to Kountz’s testimony as being hearsay and requested the court to strike the testimony. The objection was overruled.

On appeal, Cline contends that the District Court committed reversible error by admitting Kountz’s testimony. Cline claims Kountz did not have personal knowledge as to whether garbage was hauled away from the cafe on the morning of October 12, 1992, nor did he have a legitimate business record confirming such a stop. Cline argues that the State intended to use Kountz’s testimony in its closing argument to show that the dual tire tracks found at the crime scene were those of the garbage truck, thus refuting Cline’s argument that someone other than himself with access to a vehicle with dual tire tracks had committed the crime.

The State counters that it did not present any evidence concerning the tire tracks found at the crime scene or make any reference to the tire tracks in its closing argument. The State points out that the only other mention of the dual tire tracks came on Cline’s cross-examination of Christie who admitted that photographs of the tire tracks had not been compared to the garbage truck and that the tracks could have been made by the person who burglarized the cafe. The State argues that Cline may not predicate a claim of error on the admission of testimony which he himself elicited. Since this case is being remanded for a new trial on newly discovered evidence grounds, it is somewhat speculative as to whether the tire track issue will arise in the new trial. Nevertheless, since both parties briefed the issue and since it may arise in any new trial we will briefly address the issue.

Since Cline himself elicited the alleged hearsay testimony, we conclude that he cannot argue on appeal that its admission constitutes reversible error. Furthermore, our review of the record fails to indicate any relationship between the alleged hearsay testimony and any element of the offenses for which Cline was convicted. We have stated that “ ‘[o]nly if there was a reasonable possibility that inadmissible evidence might have contributed to the conviction is there reversible error.’ ” State v. Earl (1990), 242 Mont. 279, 283, 790 P.2d 464, 466 (quoting State v. Brush (1987), 228 Mont. 247, 251, 741 P.2d 1333, 1335). We therefore conclude that even if the admission of the testimony was error, it was harmless error.

In conclusion, we note that Cline also appealed the District Court’s denial of his motion for a directed verdict made at the closing of the State’s case-in-chief. As we are remanding the case back to the District Court for a new trial, we determine this issue to be moot. We conclude the District Court abused its discretion in denying Cline’s motion for a new trial based on newly discovered evidence. We remand this case to the District Court for further proceedings consistent with this opinion.

JUSTICES GRAY, NELSON, TRIEWEILER and LEAPHART concur.

      . In view of our recent decision in State v. Gollehon (1995), [274 Mont. 116], 906 P.2d 697, regarding the time requirements for filing motions for new trial under § 46-16-702, MCA, and our relention of two judicially created exceptions to that rule, it is appropriate that we point out that the issue of the timeliness of Cline’s motion for new trial was neither raised in the District Court nor in this Court on appeal, and accordingly, we decline to address that issue here. Moreover, our order staying Cline’s appeal and remanding his motion to the District Court for consideration was entered well before our decision in Gollehon and was consistent with our decisional law then in effect.


author: JUSTICE HUNT JUSTICE NELSON JUSTICE LEAPHART,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RONALD TREIBLE, JR., Defendant and Appellant.
    No. 94-390.
    Submitted on Briefs October 19, 1995.
    Decided January 18, 1996.
    53 St.Rep. 38.
    275 Mont. 59.
    910 P.2d 237.

      For Appellant: Jock B. West, West, Patten, Bekkedahl & Green, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; John Bohlman, Musselshell County Attorney, Roundup.
   JUSTICE HUNT

delivered the Opinion of the Court.

On October 5, 1993, Ronald Treible, Jr. was found guilty by a jury of felony theft in the Fourteenth Judicial District Court, Musselshell County and was sentenced to two years deferred. Defendant appeals his conviction.

We affirm.

The sole issue on appeal is whether, following the completion of the trial, the District Court erred in denying defendant’s motion for a directed verdict for failure to prove elements of felony theft.

FACTS

On January 23, 1993, the owners of the Melstone Bar and Cafe, Melvin and Judy Metzger, called the police to report their bar had been broken into and that there were several missing items, including chewing tobacco, cigarettes, hard liquor, a bottle of champagne, several cases of beer, five pounds of hamburger, and a bag of shrimp. The day after the break-in Melvin Metzger received an anonymous phone call that a bottle of liquor taken from the Bar could be found at the Murnion shop, a local garage. Mr. Metzger called the information to Deputy Sheriff Fischer, the investigating officer.

Deputy Fischer went to the Murnion shop and asked to look around. While there, he observed a bottle of Crown Royal on the shop bench. Knowing this was one of the items missing from the Bar, the Deputy asked to search the adjoining trailer house. At the time, defendant was renting a room at the Murnion trailer. After searching the Murnion trailer, Fischer seized almost two cases of bottled beer, an empty champagne bottle, unopened cigarettes, a piece of plastic wrap, two pieces of waxed paper, and several empty beer boxes and bottles. Fischer then questioned B.J. Mumion who told Fischer the names of the people who had attended a party in the trailer the previous evening. Fischer contacted these people for statements.

Upon learning that J.B. Benson was one of the people present at the party, Fischer obtained permission to search Benson’s trailer. In that search, the Deputy seized chewing tobacco, another bottle of Crown Royal, a fifth of Jim Beam, a bottle of Jack Daniels, close to three cases of beer, forty lottery tickets, cigarettes, and several empty beer bottles and cans.

According to the testimony provided at trial, several people had attended a party at the Murnion trailer on the night of the break-in at the Bar. Sometime after 2:00 a.m., J.B. Benson, Barry DeJaegher and defendant left the party and later returned with several cases of beer.

Following the investigation J.B. Benson, Barry DeJaegher and defendant were charged with burglary of the Melstone Bar and Cafe. Atrial was conducted on October 4, 1993. The jury found defendant guilty of felony theft on the basis of a lesser included offense instruction offered by the State.

The sole issue on appeal is whether, following the completion of the trial, the District Court erred in denying defendant’s motion for a directed verdict for failure to prove elements of felony theft.

Defendant does not challenge the validity of the lesser included offense instruction on felony theft, but rather challenges the sufficiency of the evidence to sustain the jury’s verdict.

The standard of review for a District Court’s decision on a motion for a directed verdict is the same standard that applies to a decision on a motion to dismiss due to insufficient evidence. State v. Downing (1989), 240 Mont. 215, 217, 783 P.2d 412, 414. The motion should only be granted when there is no evidence upon which a trier of fact could render a verdict. State v. Lyons (1992), 254 Mont. 360, 363, 838 P.2d 397, 399.

Felony theft is defined by § 45-6-301, MCA (1993), set forth in part as follows:

(1) Aperson commits the offense of theft when the person purposely or knowingly obtains or exerts unauthorized control over property of the owner and:
(a) has the purpose of depriving the owner of the property;
(b) A person convicted of the offense of theft of property exceeding $300 in value or theft of any commonly domesticated hoofed animal shall be fined not to exceed $50,000 or be imprisoned in the state prison for any term not to exceed 10 years, or both.

Defendant contends that this Court reversed the conviction of J.B. Benson, who had also been charged in connection with the break-in at the Melstone Bar. J.B. Benson was convicted of the crime of burglary. We held the State had failed to prove by either direct or circumstantial evidence that J.B. Benson had unlawfully entered the Melstone Bar with the purpose of committing an offense. A conviction of burglary may be upheld if possession of stolen property, accompanied by other incriminating circumstances, and a false or unreasonable explanation by the accused is shown. State v. Benson (1994), 266 Mont. 415, 418, 880 P.2d 1338, 1340.

Because the jury convicted defendant of the crime of felony theft as a lesser included offense of burglary, we need not discuss the elements of burglary. The testimony shows that the defendant had unauthorized control over the property of the Metzgers depriving them of the property.

The defendant rented a room in the Murnion trailer. Defendant testified he was paying rent for the trailer at the time of the robbery, but claims that he did not stay there very much and actually resided with his parents at the family ranch. On the night of the robbery defendant spent some time at the trailer alone prior to the robbery, was there with friends after the robbery and spent the night there.

The evidence showed that items taken from the Bar were found in the Murnion trailer in the common areas used by all of the occupants of the trailer. Stolen merchandise was found in the kitchen, in the refrigerator and in the garbage can. In addition, Deputy Fischer testified that he found four packs of unopened Marlboro cigarettes in the defendant’s bedroom in the Murnion trailer.

Judy Metzger identified the plastic wrap found in Murnion’s trailer as the wrap used to cover hamburger patties at the Cafe. She also identified the wax paper found in Murnion’s trailer as the same kind of paper she used to separate the patties before wrapping them in plastic.

Melvin Metzger identified the bottle of Jim Beam by its handwritten price, and he was also able to identify the handwriting on the Crown Royal box found in the trailer. Metzger further testified that the bottle of champagne seized was the same brand purchased by the Bar for the New Year’s party and that the champagne had been taken the night of the crime.

The Metzger’s testified that the Bar was broken into between 2:00 and 5:00 a.m. Defendant admits he left the party with J.B. Benson and Barry DeJaegher around 2:00 a.m. to retrieve more beer. When the three returned to the party in the Murnion trailer they were carrying three cases of beer.

We conclude there was sufficient evidence in the record to support the jury finding that the defendant was guilty of felony theft. Circumstantial evidence when sufficient, will support a criminal conviction. State v. Bromgard (1993), 261 Mont. 291, 295, 862 P.2d 1140, 1142. We hold the District Court did not err in denying the defendant’s motion for a directed verdict.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICE TRIEWEILER concur.

JUSTICE NELSON

specially concurs.

I agree with the result of our opinion — i.e. that there was sufficient circumstantial evidence to sustain Treible’s conviction of felony theft. I write separately, however, out of my concern that any implication be drawn from our opinion that felony theft is, in fact, a lesser included offense of burglary. On appeal Treible did not challenge the status of felony theft as a lesser included offense of burglary, and, accordingly, we have not ruled on that issue. Whether felony theft is a lesser included offense of burglary under § 46-1-202(8), MCA, and under the tests enunciated in the case law remains to be decided in some future case, and our opinion here should not be read as having decided that issue one way or the other.

JUSTICE LEAPHART,

dissenting.

I dissent from the Court’s opinion and would hold that the District Court erred in denying Treible’s motion for a directed verdict. The evidence presented by the State was insufficient to support the conviction. Treible’s connection to the stolen property is even more tenuous than co-defendant Benson’s connection — which this Court found to be inadequate to support the conviction. State v. Benson (1994), 266 Mont. 415, 880 P.2d 1338.

As the Court points out, the State concedes that there is a lack of direct evidence linking Treible to the stolen property. Although Treible rented a room from Murnion, none of the stolen property was tied to defendant Treible or found to be in his possession or control. The stolen property was found in the Murnion garage, Murnion’s trailer, and in Benson’s trailer. None of the evidence the Court points to in sustaining Treible’s conviction for felony theft was connected to Treible, rather, it was tenuously tied to co-defendants Murnion and Benson. Section 45-6-301, MCA, provides:

(1) A person commits the offense of theft when the person purposely or knowingly obtains or exerts unauthorized control over property of the owner and:
(a) has the purpose of depriving the owner of the property ... [emphasis added].

The State has not proven that Treible obtained or exerted unauthorized control over the property of the owner as required by § 45-6-301, MCA. In Benson, this Court rejected the State’s argument that Benson’s possession of the stolen lottery tickets and items consistent with others taken from the bar was enough to sustain the conviction for burglary. Benson, 880 P.2d at 1339-40.

This Court has held that control over the stolen property is an essential element of the offense of theft. State v. Campbell (1978), 178 Mont. 15, 582 P.2d 783. Mere association with the stolen article is not sufficient to show control over the stolen article and does not establish the control element of theft. Campbell, 582 P.2d at 785. Here, the State did not even prove that the stolen property was within Treible’s possession — let alone his control. As the renter of a room in Mumion’s trailer, Treible did not have exclusive possession over the contents of the entire trailer. As the Court in Campbell clearly stated:

“[I]n order that recent possession be evidence of guilt it must be exclusive in the accused. The possession must be such as to indicate that the accused and not someone else took the property. If the place where the property is found is such that another person could have had access thereto as well as the accused, it cannot be said that the property was in the accused’s exclusive possession and the circumstance would not be evidence of his guilt.”

Campbell, 582 P.2d at 785 (citation omitted). In this case, the State alleged that Treible and two co-defendants were responsible for the theft. Further, as the Court’s opinion in Benson recognizes, all co-defendants had access to the locations where the stolen property was found. In addition, other individuals were present the night of the incident. Benson, 880 P.2d at 1340. Although the State was not required to prove that Treible’s explanation was false or unreasonable, the State was still required to prove the elements of felony theft, namely, that Treible obtained or exerted unauthorized control over the stolen property. The State failed to meet that burden. Accordingly, I would reverse the District Court.

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


author: JUSTICE NELSON

text:
    IN RE THE MARRIAGE OF: GEORGE G. FRANKS, Petitioner and Respondent and Cross Appellant, and BONNIE J. FRANKS, Respondent and Appellant.
    No. 95-082.
    Submitted on Briefs November 14, 1995.
    Decided January 18, 1996.
    53 St.Rep. 41.
    275 Mont. 66.
    909 P.2d 712.

      For Appellant: Kerry N. Newcomer, Geiszler & Newcomer, Missoula.
    For Respondent: Paul T. Ryan, Datsopoulos, MacDonald & Lind, Missoula.
   JUSTICE NELSON

delivered the Opinion of the Court.

Bonnie J. Franks (Bonnie) appeals and George G. Franks (George) cross appeals from the denial of Bonnie’s Motion to Vacate Settlement Agreement and subsequent rulings of the District Court for the Fourth Judicial District, Missoula County. We affirm in part, reverse in part and remand.

Bonnie raises the following issues on appeal:

1. Did the District Court abuse its discretion when it refused to allow Bonnie to withdraw from the March 18,1994 settlement agreement?

2. Did the District Court abuse its discretion when it found the March 18, 1994 settlement agreement not unconscionable over Bonnie’s objection?

3. Did the District Court abuse its discretion when it failed to award child support retroactive to the date the parties separated, subject to the statute of limitations?

George raises two additional issues in his cross appeal:

4. Did the District Court abuse its discretion when it awarded child support to Bonnie contrary to the parties’ March 18,1994 settlement agreement?

5. Did the District Court abuse its discretion when it reformed a valuation of an asset in the March 18, 1994 settlement agreement without a finding of unconscionability?

BACKGROUND FACTS

Bonnie and George separated in January 1982 after 21 years of marriage. Although their eldest child had reached the age of majority by the time of their separation, Bonnie and George also had one minor child and were expecting another child.

When Bonnie and George separated, Bonnie was employed as an elementary school teacher in Lolo and George was employed as a millwright at what is now the Stone Container Corporation paper mill near Frenchtown. Bonnie retired from her employment at the Lolo school in 1991. She subsequently taught for a time at St. Joseph Elementary School in Missoula, but she is unable to continue teaching due to health problems.

Prior to their separation, Bonnie and George had acquired a motel and two trailer parks in addition to their residence. At the time of their separation, Bonnie and George entered into an oral property settlement agreement whereby Bonnie was to retain the residence, the motel and the trailer parks. In addition to paying the marital debt, Bonnie managed, maintained and improved the properties over the next few years. George did not contribute toward the development or maintenance of the properties. Neither did he pay child support for the parties’ two minor children. Bonnie sold the motel in June 1982 and retained the proceeds.

In September 1993, more than eleven and one-half years after Bonnie and George separated, George filed a petition for dissolution. George sought a determination of current child support and his interest in the residence and trailer parks. Bonnie requested current child support for the parties’ one remaining minor child, as well as child support retroactive to the date of the parties’ separation. She also requested ratification of the parties’ 1982 oral property settlement agreement.

At a pre-hearing settlement conference on March 18, 1994, the parties signed a hand-written agreement containing provisions for the final disposition of the parties’ property and debt. The agreement stipulated that Bonnie was to receive the majority of the parties’ assets and, in return, George would receive $50,000 in cash from Bonnie and he would not be required to pay child support.

The next business day following the settlement conference, Bonnie attempted to withdraw from the agreement claiming that the settlement master and both attorneys were overbearing and intimidating and that she had been confused and overwhelmed by the process. Bonnie discharged her attorney claiming that he failed to provide her with various documents including discovery responses and that he failed to inform her of the court’s scheduling order.

At a June 1, 1994 hearing before the District Court, Bonnie’s new counsel moved to withdraw from the settlement agreement, reinstitute a discovery schedule and proceed to trial. The District Court issued an order on June 7, 1994, denying the motion.

On July 8,1994, the District Court conducted a hearing on Bonnie’s allegations that the settlement agreement is unconscionable. Each party was allowed one hour to present testimony and conduct cross examination. Both Bonnie and George testified at the hearing.

The District Court issued its Findings of Fact, Conclusions of Law and Decree on August 17, 1994, whereby the court implemented the parties’ settlement agreement after finding that it was not unconscionable. However, in its decree, the court modified the agreement to include child support, to revalue stock held by George, and to include a Lord Abbott U.S. Government Fund that had not previously been disclosed by George. The District Court subsequently amended its findings, conclusions and decree to correct certain mathematical and other errors.

On October 6, 1994, George moved the court to alter or amend its decree to exclude the Lord Abbott fund and deny child support. The court did amend the decree with respect to the Lord Abbott fund, but left the award of child support unchanged.

Bonnie appeals the District Court’s denial of her motion to vacate the settlement agreement. She also appeals the District Court’s determination that the agreement is not unconscionable. George cross appeals on the District Court’s modification of the agreement to include child support and to revalue the stock.

SETTLEMENT AGREEMENT

Bonnie moved to vacate the settlement agreement contending that she felt intimidated at the settlement conference and that George failed to disclose all of his assets. She argued that these and other factors made the agreement unconscionable. The District Court denied Bonnie’s motion and accepted the written agreement determining that, with the inclusion of certain “adjustments for undisclosed and undervalued property,” the agreement was not unconscionable.

The terms of a separation agreement, except those providing for the support, custody and visitation of children, are binding upon the court unless the court finds the agreement to be unconscionable. Section 40-4-201(2), MCA. If the separation agreement is found to be unconscionable, then the court may request that the parties submit a revised separation agreement or the court may order the disposition of property. Section 40-4-201(3), MCA. Consequently, it was reversible error for the District Court to modify the parties’ agreement without finding the agreement unconscionable. In re Marriage of Blankenship (1984), 210 Mont. 31, 35, 682 P.2d 1354, 1356.

Bonnie also contends that the District Court erred in failing to enforce the parties’ 1982 oral property settlement agreement. However, this Court has already held that oral marital settlement agreements are unenforceable as property settlement agreements. In re Marriage of Simms (1994), 264 Mont. 317, 321, 871 P.2d 899, 901-2.

Accordingly, we hold that the District Court erred by modifying the parties’ settlement agreement without finding it to be unconscionable and we remand to the District Court for a determination of whether or not the agreement is unconscionable. If the District Court finds that the agreement is conscionable, then it must be enforced as written, excluding provisions for support, custody and visitation of the parties’ children. If the District Court finds that the agreement is unconscionable, then the court may proceed pursuant to § 40-4-201(3), MCA, and either request that the parties submit a revised separation agreement or the court may order the disposition of property.

CHILD SUPPORT

In the March 18, 1994 settlement agreement, the parties stipulated that George would not be required to pay child support for the parties’ minor child. However, the District Court ordered George to pay $435 per month in child support to Bonnie effective September 2, 1993.

George contends it was error to award child support to Bonnie contrary to the parties’ settlement agreement since Bonnie received a majority of the parties’ assets. Nevertheless, the terms of a separation agreement providing for the support, custody, and visitation of children are not binding upon the court. Section 40-4-201(2), MCA. Moreover, our statutory and case law provide that the Uniform Child Support Guidelines must be used in all cases. Section 40-4-204(3)(a); Brandon v. Brandon (1995), 271 Mont. 149, 151-53, 894 P.2d 951, 953.

In her response to the petition for dissolution, Bonnie requested child support retroactive to the parties’ separation in 1982. However, the District Court awarded child support effective September 2,1993, the date of the petition for dissolution. Bonnie contends that the District Court abused its discretion in failing to award retroactive child support.

“In determining child support retroactivity, we will not disturb the award made by the District Court unless a clear abuse of discretion resulting in substantial prejudice is shown.” In re Marriage of Nash (1992), 254 Mont. 231, 236, 836 P.2d 598, 602 (citing In re Marriage of DiPasquale (1986), 220 Mont. 497, 499, 716 P.2d 223, 224).

Bonnie has failed to show that she has been substantially prejudiced by the District Court’s determination not to award child support retroactive to 1982. Bonnie had the benefit of the parties’income-producing property during the eleven years that she and George were separated.

Accordingly, we hold that the District Court did not abuse its discretion by awarding child support to Bonnie contrary to the parties’ settlement agreement and by awarding child support effective September 1993.

Affirmed in part, reversed in part and remanded.

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


text:
    THOMAS M. MALEE, Applicant, v. DISTRICT COURT for the Second Judicial District of the State of Montana, and the HONORABLE JAMES E. PURCELL, Judge thereof, Respondent.
    No. 95-498.
    Submitted on Briefs December 1, 1995.
    Decided January 30, 1996.
    53 St.Rep. 44.
    275 Mont. 72.
    911 P.2d 831.

      For Applicant: Thomas M. Malee, Attorney at Law, Pro Se, Billings.
    For Respondent: John Maynard, Attorney at Law, Helena.
   OPINION

JUSTICE LEAPHART

delivered the Opinion of the Court.

For the third time, this Court considers Thomas M. Malee’s application for writ of review of the respondent District Court’s contempt ruling. This Court recaptioned and returned Malee’s first application for writ of review pursuant to Rule 17(c), M.RApp.P., because Malee did not name the district judge and the judicial district from which the ruling was issued. Upon refiling, we dismissed Malee’s application pursuant to Rule 17(a), M.R.App.P., because Malee did not submit the application for writ of review in the name of the real parly in interest, i.e., himself. Although we could dismiss Malee’s latest application pursuant to Rule 17(c), M.R.App.P., because Malee fails to name the District Judge in the title of his application, we prefer to curtail these proceedings by deciding the merits of Malee’s application.

The District Court held Thomas M. Malee in contempt of court for referring to opposing counsel with “an insulting and obnoxious comment” in a brief filed with the court. In its Order finding Malee in contempt, the court stated:

The Court feels compelled to discuss an insulting and obnoxious comment made by Plaintiff’s counsel in his brief in which he refers to Defense counsel as being a “horses [sic] rear-end.” The Court is outraged by this indignant and unconscionable accusation. The accusation not only offends the dignity of the Court, but it also offends the judicial process. The comment was unnecessary, distasteful and clearly unprofessional.
The comment, however, is indicative of Plaintiff’s counsel’s brazen conduct during the course of this litigation. As indicated earlier, Mr. Malee has taunted, insulted and harassed opposing counsel and this Court to the point of exasperation. He has made a mockery of this Court and the court system.
Mr. Malee’s latest antic provides sufficient justification to invoke the Court’s contempt power. In short, the nonsense must stop. Accordingly, Mr. Malee is in contempt of Court for the lewd comment. ...

Malee’s application for writ of review raises two questions: Is a contemptuous brief a form of indirect contempt triggering the procedures of § 3-1-512, MCA; and, is there a right of allocution in cases of direct contempt?

1. Is a contemptuous brief a form of indirect contempt triggering the procedures of § 3-1-512, MCA?

There are two purposes of a contempt order — to vindicate the dignity of the court’s authority and to persuade the contemnor to do what the law requires. Goodover v. Lindey’s, Inc. (1993), 257 Mont. 38, 41, 847 P.2d 699, 700. In reviewing contempt proceedings, we determine whether substantial evidence supports the judgment of contempt, and whether the district court had jurisdiction to issue the order. Marks v. First Judicial District Court (1989), 239 Mont. 428, 430, 781 P.2d 249, 250; State ex rel. Foss v. District Court (1985), 216 Mont. 327, 331, 701 P.2d 342, 345; Matter of Graveley (1980), 188 Mont. 546, 555, 614 P.2d 1033, 1039.

When contempt is not committed in the immediate view and presence of the court or judge in chambers, the contempt is indirect or constructive contempt. Section 3-1-512, MCA. Indirect contempt is often a matter of a party not following a court’s order. In re Marriage of Prescott (1993), 259 Mont. 293, 296, 856 P.2d 229, 231; Marks, 781 P.2d at 250; Valley Unit Corp. v. City of Bozeman (1988), 232 Mont. 52, 754 P.2d 822; Graveley, 614 P.2d at 1039; see 4 William Blackstone, Commentaries *283-*285. This Court has consistently held that the procedures found in § 3-1-512, MCA, must be followed in cases of indirect contempt. Valley Unit Corp., 754 P.2d 822; Foss, 701 P.2d 342; Milanovich v. Milanovich (1982), 201 Mont. 332, 655 P.2d 963; Graveley, 614 P.2d 1033; State ex rel. Kidder v. District Court (1970), 155 Mont. 442, 472 P.2d 1008. Section 3-1-512, MCA, states:

Procedure — contempt not in presence of the court. When the contempt is not committed in the immediate view and presence of the court or judge at chambers, an affidavit of the facts constituting the contempt or a statement of the facts by the referees or arbitrators or other judicial officer shall be presented to the court or judge.

Additionally, constructive contempt requires the following due process requirements:

That one charged with contempt of court be advised of the charges against him, have reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.

Prescott, 856 P.2d at 232 (citing Marks, 781 P.2d at 252).

In the instant case, Malee submitted a brief containing a contemptuous comment about opposing counsel to the District Judge; no accusatory affidavit was filed nor was there a hearing on the matter. If Malee’s contempt were indirect, we must set aside the order of contempt because the District Court did not follow the affidavit or statement of facts procedure set forth in § 3-1-512, MCA, and, thus, lacked jurisdiction to issue the contempt order. Accordingly, the question for this Court is whether the comments in Malee’s brief constitute indirect or direct contempt.

This Court has held that the filing of contemptuous pleadings is a form of indirect contempt. Porter v. First Judicial District Court (1950), 123 Mont. 447, 453-54, 215 P.2d 279, 283. In Kidder, and previous cases, we construed direct contempt as contemptuous acts occurring after the trial had commenced, either while the trial was in progress or during recess. Kidder, 472 P.2d at 1012. On the other hand, we held that all contemptuous acts committed when the court is not sitting were indirect or constructive contempt. Kidder, 472 P.2d at 1012. To the extent that these cases, Porter, Kidder, and State ex rel. Stagg v. District Court (1926), 76 Mont. 495, 248 P. 213, hold or suggest that pleadings and briefs presented to the court, while it is not sitting, may only constitute indirect contempt, they are overruled. Rather, we hold that contemptuous pleadings and briefs presented to the court are direct contempt in that they are “in the immediate view and presence of the court or judge at chambers.” Section 3-1-511, MCA.

This position reflects the rationale that no extrinsic evidence, such as testimony of third parties or affidavits, need be introduced to prove direct contempt. The Ninth Circuit distinguishes direct from indirect contempt on the bases that: “Indirect contempt is contumacious behavior occurring beyond the eye or hearing of the court and for knowledge of which the court must depend upon the testimony of third parties or the confession of the contemnor.” United States v. Marshall (9th Cir. 1971), 451 F.2d 372, 373. In a case of direct contempt, “the pertinent facts are not disclosed by the presiding judge through the medium of witnesses, but are such as are observed by the judge himself.” State ex rel. Rankin v. District Court (1920), 58 Mont. 276, 291, 191 P. 772, 775. Contemptuous pleadings or briefs are before the court and the court personally observes the elements of the offense. Thus, there is no need for extrinsic evidence to prove the elements of what is before the court. We agree with the Seventh Circuit in its determination that “although the contemptuous matter was in a pleading and not in open court, no authority appears to limit the judge’s sanctioning authority to what he hears or sees in person, rather than through a pleading. Contemptuous tactics and arguments can be as easily made on paper as in open court.” Kunik v. Racine County, Wis. (7th Cir. 1991), 946 F.2d 1574, 1583.

In so holding, we honor a 109 year old precedent of this Court in condemning attorneys who, in their briefs, malign the dignity of the bench or the legal profession. In 1887, this Court denounced such behavior:

The brief of the appellant contains language attempting to cast reproach upon the proceedings of the court below, and seeking to make it the object of contemptuous wit and ridicule. Argument is the principal purpose of the brief, and this kind of wit and ridicule is not argument. The use of slang phrases and ridiculous language ... should have no place in a brief. No character of persons can have a deeper interest in preserving the dignity of the bench, or maintaining the courtesies of our honorable profession, than the members of the bar, and they should act accordingly. ... The language of the brief in this case is reprehensible, as being in violation of the conduct and courtesy due from the bar to the bench, and will not be tolerated.

Brownell v. McCormick (1887), 7 Mont. 12, 18, 14 P. 651, 653.

In the instant case, we hold that since Malee’s brief was filed with the court and personally observed by the judge, it constitutes direct contempt. The court had no need of testimony from third parties, an affidavit of the facts, nor a confession of the contemnor, to gain knowledge of the offense. However, even though we have found Malee’s brief to be direct contempt, a question remains as to whether Malee was deprived of the right of allocution, that is, an opportunity to explain or excuse himself.

2. Is there a right of allocution in cases of direct contempt?

Direct contempt may be summarily punished seemingly without any due process. Under § 3-1-511, MCA, there is no mention of an accused contemnor’s opportunity to explain or excuse himself, in other words, no right of allocution. Section 3-1-511, MCA, provides:

Procedure — contempt committed in the presence of the court. When a contempt is committed in the immediate view and presence of the court or judge at chambers, it may be punished summarily, for which an order must be made reciting the facts as occurring in such immediate view and presence and adjudging that the person proceeded against is thereby guilty of a contempt and that he be punished as therein prescribed.

Many of our decisions on contempt strongly suggest that if a case involves indirect, constructive contempt “rather than direct contempt, some due process is required.” Marks, 781 P.2d at 252 (emphasis added); see also Prescott, 856 P.2d at 232; Lilienthal v. District Court (1982), 200 Mont. 236, 242, 650 P.2d 779, 782. These holdings in combination with § 3-1-511, MCA, authorizing summary punishment for direct contempt, make an argument that, although some due process is required for indirect contempt, no due process is required for direct contempt.

However, we have held that in cases of direct contempt, “the contemnor must be granted an opportunity to explain or excuse himself. Such opportunity allows the individual to potentially purge himself or show no contempt was intended.” State ex rel. Smith v. District Court (1984), 210 Mont. 344, 347, 677 P.2d 589, 591 (citing Rankin, 191 P. at 776). In Smith, the direct contempt consisted of Smith’s refusal to sit down after the court ordered him to do so. Smith, 677 P.2d at 591. This Court held that Smith had been given an opportunity to explain or excuse himself:

Judge McCarvel near the end of the hearing listened to the attorney’s apology and explanation as to why he had remained on his feet. The opportunity to be heard need not arise in a formal hearing, separate and distinct from the proceeding in which the contempt arose. All that is required is the contemnor be made aware of his offensive conduct and allowed an opportunity to speak on his behalf. Mr. Smith was provided such opportunity and this Court will not reverse the District Court’s decision to proceed with its order of contempt.

Smith, 677 P.2d at 591. Although Smith has not been relied on until now, we believe that Smith establishes the correct rule. In holding that an opportunity to be heard, or right of allocution, should be afforded the accused contemnor in a summary contempt proceeding, we concur with the recommendations of United States Supreme Court and the American Bar Association Standards for Criminal Justice.

The United States Supreme Court has noted “reasonable notice of a charge and an opportunity to be heard in defense before punishment [for contempt] is imposed are ‘basic in our system of jurisprudence.’ ” Groppi v. Leslie (1971), 404 U.S. 496, 502, 92 S.Ct. 582, 30 L.Ed.2d 632 (contempt of legislature)(citing In re Oliver (1948), 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682); see also Taylor v. Hayes (1974), 418 U.S. 488, 497-98, 94 S.Ct. 2697, 41 L.Ed.2d 897 (contempt by an attorney in a criminal trial). The United States Supreme Court endorses the American Bar Association’s recommendations that:

Although there is authority that in-court contempts can be punished without notice of charges or an opportunity to be heard, Ex Parte Terry, 128 U.S. 289 (1888), such a procedure has little to commend it, is inconsistent with the basic notions of fairness, and is likely to bring disrespect upon the court. Accordingly, notice and at least a brief opportunity to be heard should be afforded as a matter of course. Nothing in this standard, however, implies that a plenary trial of contempt charges is required. [Now found in American Bar Association Standards for Criminal Justice (1986 Supp.) 6-4.4.]

Taylor, 418 U.S. at 499 n.8, 94 S.Ct. at 2703 n.8. We adopt this recommendation.

In the instant case, the District Court erred in not affording Malee an opportunity for allocution prior to imposing a penalty. The argument for a right of allocution is particularly strong where, as here, the contempt is contained in a brief and the contemnor, prior to receiving the court’s written order, has no notice that the court views the brief to be contemptuous. Before being sentenced for contempt, the contemnor should be afforded the opportunity to explain or to excuse his written filing. In a similar case, where the Supreme Court of Wisconsin held that the contemnor had been wrongfully denied an opportunity for allocution in a summary contempt proceeding, the court vacated the contempt penalty and remanded the case to accord the contemnor his right of allocution. Currie v. Schwalbach (Wis. 1987), 407 N.W.2d 862, 873. On remand, the original judge had continuing jurisdiction and the authority, after the contemnor’s allocution, to vacate the original finding of contempt, to impose a different sanction, or to again impose the sanction of contempt. Currie, 407 N.W.2d at 873. We adopt the Wisconsin approach in Currie. Thus, we vacate the contempt sentence and remand to give Malee an opportunity for allocution after which the District Court may either vacate the contempt, uphold the contempt and impose a different sentence, or reinstate the same sentence. We make it clear that “the district court need not hold a full-blown trial,” rather, Malee “should be allowed a reasonable opportunity to defend or explain his actions or present arguments in mitigation.” United States v. Lumumba (2d Cir. 1984), 741 F.2d 12, 17, cert. denied, 479 U.S. 855, 107 S.Ct. 192, 93 L.Ed.2d 125 (1986).

The sentence is vacated and the matter is remanded for further proceedings consistent with this opinion.

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


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. THOMAS G. RICE, Defendant and Appellant.
    No. 95-035.
    Submitted on Briefs November 16, 1995.
    Decided January 30, 1996.
    53 St.Rep. 48.
    275 Mont. 81.
    910 P.2d 245.

      For Appellant: Jeffrey T. Renz, Montana Defender Project, Missoula.
    For Respondent: Joseph P. Mazurek, Attorney General, Micheál S. Wellenstein, Assistant Attorney General, Helena; Edward Beaudette, Anaconda-Deer Lodge County Attorney, Anaconda.
   JUSTICE HUNT

delivered the Opinion of the Court.

The Third Judicial District Court, Deer Lodge County, found Appellant Thomas G. Rice (Rice) guilty of burglary and domestic abuse and imposed a three-year sentence with all but 90 days deferred, subject to certain conditions. Rice failed to abide by those conditions, and the court consequently revoked the deferred sentence and sentenced him to ten years in prison, with nine years suspended. Rice appeals the validity of his burglary conviction.

Appeal dismissed.

The dispositive issue on appeal is: When does a criminal defendant’s time of appeal begin to run if the defendant receives a deferred sentence?

On August 1,1993, Rice assaulted the woman with whom he lived; she then fled to her mother’s house and reported the incident to the police. After being examined and treated at the hospital, the victim returned to her mother’s house. Sometime later, Rice entered the mother’s house and assaulted the victim again. He was arrested shortly thereafter.

Following a December 1993 bench trial, the District Court found Rice guilty of burglary and domestic abuse. On June 8, 1994, the District Court sentenced Rice to three years with all but 90 days deferred, subject to certain conditions.

On October 12, 1994, the State moved to revoke Rice’s deferred sentence for failure to abide by the conditions set out by the District Court. On November 23, 1994, the District Court revoked the deferred sentence and sentenced Rice to ten years in prison, with nine years suspended.

Rice appeals the validity of his burglary conviction, contending that the District Court abused its discretion by finding him guilty of that charge. The State contends this Court lacks jurisdiction to hear the appeal because the time in which Rice may appeal has expired. It therefore contends that Rice no longer has the right to appeal the underlying burglary conviction, and that his right to appeal is limited to the revocation of his deferred sentence.

Rice contends that the time in which he may file an appeal did not begin to run until sentence was actually imposed, which he argues occurred after revocation. If Rice is correct, his appeal is timely. If the State is correct, Rice’s appeal is not timely and this Court does not have jurisdiction to consider it. We hold that Rice’s appeal is not timely, and therefore this Court has no jurisdiction to hear his appeal.

Rule 5(b), M.R.App.R, gives a defendant 60 days in which to appeal a criminal judgment. This Court is without jurisdiction to hear an appeal filed more than 60 days after judgment. State v. Haskins (1992), 255 Mont. 202, 841 P.2d 542. Further, “an appeal may be taken by the defendant only from a final judgment of conviction and orders after judgment which affect the substantial rights of the defendant.” Section 46-20-104(1), MCA. Therefore, the 60 days in which a defendant may appeal do not begin to run until such time as a final judgment is entered in the case.

A judgment is “an adjudication by a court that the defendant is guilty or not guilty, and if the adjudication is that the defendant is guilty, it includes the sentence pronounced by the court.” Section 46-1-202(10), MCA. Section 46-18-201, MCA, allows a court to “defer imposition of sentence ... [and] impose upon the defendant any reasonable restrictions or conditions during the period of the deferred imposition.” Section 46-18-201(l)(a), MCA.

In light of the above statutes and definitions, Rice asserts that the time in which he may properly appeal the burglary conviction has not expired. He notes that he may only appeal a final conviction, and that a conviction is not final until sentence is imposed. He contends that a deferred sentence is not “imposed” unless and until the deferral is revoked. Therefore, Rice argues, the 60 days in which he may appeal his conviction began at the time the deferral was revoked and sentence actually imposed. Since he appealed within this time, he contends that this Court retains jurisdiction.

Rice urges this Court to interpret “sentence” as synonymous with “punishment,” and we acknowledge that such an interpretation formerly was correct. Before 1990, the Montana Code Annotated defined “sentence” as “the punishment imposed on the defendant by the court.” Section 46-1-201(9), MCA (1989). This is consistent with Montana case law before 1991, which accepted “sentence” as being the same as “punishment.” See Newman v. Estelle (1971), 156 Mont. 502, 484 P.2d 276; and Petition of Williams (1965), 145 Mont. 45, 399 P.2d 732.

However, § 46-1-202(24), MCA, enacted in 1991, defines “sentence” as “the judicial disposition of a criminal proceeding upon a plea, verdict, or finding of guilty.” Under this new definition, any judicial disposition of a criminal case resulting from a plea, verdict or finding of guilt is itself a sentence, regardless of whether actual punishment is deferred or immediately imposed.

Thus, when the District Court entered its order deferring imposition of sentence under § 46-18-201(l)(a), MCA, pursuant to Rice’s guilty plea, it sentenced him by judicially disposing of the criminal proceeding at issue. While Rice would have us equate a criminal “sentence” with imprisonment or probation upon suspension of sentence, the plain language of § 46-1-202(24), MCA, neither mandates nor suggests such a narrow interpretation. Sentencing can and does encompass imprisonment or a suspended sentence, but the term is no longer strictly premised on the element of actual punishment.

This does not mean, however, that we overrule Williams and Estelle. While “sentence” may be interpreted broadly pursuant to § 46-1-202(24), MCA, in deferment cases such as the one at bar, it continues to retain a narrower meaning, premised on the “punishment factor,” in double jeopardy cases. On this basis, Williams and Estelle are distinguishable.

Williams and Estelle both address the question of whether a deferred sentence is a “final sentence” for purposes of invoking the constitutional prohibition against double jeopardy. In both cases, this Court held that a deferred sentence is not final for purposes of double jeopardy because no punishment was imposed unless and until the deferred sentence was revoked. Williams, 399 P.2d at 737; Estelle, 484 P.2d at 278.

Accordingly, these two cases stand for the principle that a deferred imposition of sentence is not imprisonment or punishment in the constitutional sense of jeopardy, even if the deferred sentence includes probation conditions which require the service of some jail time. This is an entirely different issue than the question of whether a deferred sentence is final for purposes of appeal. Therefore, our narrow holding in this case should not be construed to overrule Williams, Estelle, or their progeny.

A defendant has sixty days in which to appeal a final judgment. Rule 5(b), M.RApp.P. A final judgment includes a sentence. Statutorily, a sentence is any judicial disposition of a criminal proceeding by plea, verdict, or finding of guilt. Section 46-1-202(24), MCA. Therefore, a judgment which includes a deferred sentence is final for purposes of appeal.

Rice had sixty days from the date judgment was entered in which to appeal his burglary conviction. Because he failed to file an appeal within the time allotted, this Court has no jurisdiction to hear his appeal.

The appeal is dismissed.

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