author: MR. JUSTICE WEBER MR. JUSTICE SHEEHY,

text:
    In re the MARRIAGE OF ROSEMARY HOUTCHENS, Petitioner and Respondent, and ROCKY J. HOUTCHENS, Respondent and Appellant.
    No. 87-555.
    Submitted on Briefs June 22, 1988.
    Decided Aug. 18, 1988.
    760 P.2d 71.
    Noel K. Larrivee, Larrivee Law Offices, Missoula, for respondent and appellant.
    Martha McClain, Geizler, Taylor, Newcomer & McClain, Missoula, for petitioner and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

In this action for dissolution of the parties’ marriage, the District Court for the Fourth Judicial District, Missoula County, awarded custody of the minor child to the mother and ordered the father to pay child support. The father appeals. We affirm.

The father raises two issues:

1. Did the District Court abuse its discretion in denying the father’s request for joint custody of the child and awarding sole custody to the mother?

2. Did the District Court abuse its discretion in setting the amount of child support?

The parties were married in January 1981 and separated in 1983. Their one living child of the marriage has been in the mother’s temporary custody since May 1984. Under the temporary custody order, the father had visitation for ten days each month. The child, a boy, is now of school age. The parties stipulated that he would enroll in school in Deer Lodge, where the mother lives, pending trial on the issue of permanent child custody.

At trial, the father argued for joint custody of the boy. The mother requested sole custody. She presented testimony that the father had physically abused her during the marriage. The court awarded custody to the mother, with visitation to the father on alternate weekends and holidays and for six weeks each summer. It ordered the father to pay child support in the amount of $235 per month, except during his summer visitation, when he was ordered to pay $145 per month.

I

Did the District Court abuse its discretion in denying the father’s request for joint custody of the child and awarding sole custody to the mother?

The father argues that the most logical custodial plan would be to grant custody of the child to him during the winter months and to the mother during the summer months, because of their work schedules. He is a construction worker and she is a teacher. In the alternative, he proposes joint custody with primary physical custody in the mother until the boy is 9 years of age and primary physical custody in himself for the remainder of the boy’s minority. The father also argues that the District Court abused its discretion in denying his request for joint custody because of the mother’s claim that he battered her during their marriage. The father argues that until the 1987 legislature amended Section 40-4-224, MCA, physical abuse of one spouse by the other was not a factor for consideration in child custody determinations. He further maintains that prior to that 1987 amendment, allegations of spousal abuse were not sufficient to overcome the presumption in favor of joint custody.

At the time of trial, the statute establishing the presumption in favor of joint custody, Section 40-4-224, MCA (1985), read, in relevant part:

“(1) Upon application of either parent or both parents for joint custody, the court shall presume joint custody is in the best interests of a minor child unless the court finds, under the factors set forth in 40-4-212, that joint custody is not in the best interests of the minor child. If the court declines to enter an order awarding joint custody, the court shall state in its decision the reasons for denial of an award of joint custody. Objection to joint custody by a parent seeking sole custody is not a sufficient basis for a finding that joint custody is not in the best interests of a child, nor is a finding that the parents are hostile to each other.”

The lower court made detailed findings, several of which relate to the continuing effects of the physical abuse which occurred during the parties’ marriage. These include the following:

“42. Petitioner has not been alone with Respondent since October, 1983. She continues to fear him.

“43. Petitioner testified that she and Respondent are unable to communicate about the minor child. She believes that they are unable to communicate because Respondent insists on total control of their relationship and is unable to share decision-making authority. Further, her fear of him interferes with her ability to communicate with him.

“44. Respondent denies that he assaulted Petitioner. Petitioner’s testimony concerning the assaults was credible.

“45. Respondent testified that he was not aware of any problems relating to visitation or transportation of the child but related several occasions when he and Petitioner quarreled over issues relating to the minor child.

“46. Myra Deschame was qualified to testify as an expert in the field of social work and domestic violence. Ms. Deschame identified the Petitioner as a battered spouse and testified that batterers have certain personality traits in common, including low self-esteem and an inability to control their anger.

“47. Ms. Deschame testified that children are at risk living with men who batter, both because of the likelihood that the child will be battered and the likelihood that the child will rely on that person as a role model.”

We have reviewed the transcript and conclude that the above findings are not clearly erroneous. See Rule 52(a) M.R.Civ.P.

In its conclusions, the court stated:

“Joint custody of the minor child is not in his best interest due to the violent behavior manifested by [Respondent] towards [Petitioner] during the marriage and the risk posed to the child as a result of such behavior.”

While spousal abuse was not listed as a factor to be considered in awarding custody under Section 40-4-224, MCA (1985), the evidence at trial clearly related the history of abuse to the best interests of the child. Specifically, the evidence related to Sections 40-4-212(1) and (5), MCA, the wishes of the child’s parents as to his custody and the mental and physical health of all individuals involved. The father’s arguments do not dispose of these legitimate concerns. Regardless of the plan of physical custody, joint legal custody would require a sharing of decision-making and responsibility between the parents. We hold that there was no abuse of discretion in the lower court’s conclusion that joint custody is not in the child’s best interest.

II

Did the District Court abuse its discretion in setting the amount of child support?

The father argues that the record does not support the award of $235 in child support per month. He asserts that this amount does not take into account his expenses, his fluctuating income, or his in-kind contributions to his son’s support.

Our standard of review is whether the district court abused its discretion. In re Marriage of Tonne (Mont. 1987), [226 Mont.1,] 733 P.2d 1280, 1284, 44 St.Rep. 411, 416. Exhibit 2, introduced into evidence by the mother without objection, used the formula suggested in the Uniform District Court Rule on Guidelines for Determinating Child Support to calculate the father’s monthly child support obligation at $246. The mother’s Exhibit 3, which was also admitted into evidence without objection, calculates the father’s child support obligation at $228 per month, based on the formula set forth by this Court in In re Marriage of Carlson (Mont. 1984), [214 Mont. 209,] 693 P.2d 496, 41 St.Rep. 2419, rev’d on other grounds after remand, 714 P.2d 119. The District Court’s child support award is in the range between those two calculations. The court reduced child support to $145 per month during the two months which include the father’s summer visitation. We conclude that the court’s setting of child support is not an abuse of discretion.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, GULBRANDSON and McDONOUGH concur.

MR. JUSTICE SHEEHY,

dissenting:

If we accept in full the findings of fact made by the District Court, particularly including those relating to battery, the conclusions and order derived therefrom do not make sense. Granting the father full visitation custody of the boy for six weeks during the summer, and on every alternate major holiday, belies the findings that the child would suffer battery himself, or have an improper role model.

It would make more sense, and be cheaper for the parties, if the father were granted custody of the child during the winter months when he was not working and the mother is working, and conversely, that the mother be given complete custody during the summer months when she is not working and the father is working. The reversal of their times of custody to their employment can only complicate the lives of the boy and his parents. This arrangement could have been worked out while still maintaining custody in the mother. It is certainly far better for the interests of the child that he spend as much time as possible with his parents, and not with babysitters or in daycare. Therefore I dissent.

MR. JUSTICE HUNT concurs in the foregoing dissent.


source: Caselaw Access Project

author: MR. JUSTICE McDONOUGH

license: Public Domain

text:
    J.L. HAMNER, Petitioner and Appellant, v. BUTTE/SILVER BOW COUNTY, a Political Subdivision of the State of Montana and Tim Clark, Butte/Silver Bow Personnel Director, Respondents.
    No. 88-44.
    Submitted on Briefs June 30, 1988.
    Decided Aug. 18, 1988.
    760 P.2d 76.

      John Leslie Hamner, Butte, for petitioner and appellant.
    Robert McCarthy, County Atty., Brad Newman, Deputy County Atty., Butte, for respondents.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal from the Second Judicial District questions the validity of the District Court’s declaratory judgment. Appellant Hamner claims that the lower court erred in declaring his rights under Montana laws relating to veteran’s preferences and procurement of public defender legal services. We affirm.

ISSUES

Respondent Butte-Silver Bow County’s (County’s) brief provides a more workable listing of issues than Hamner’s brief. Hamner’s brief provides several contentions which may be addressed under the issues presented by the County. Those issues are:

(1) Did the District Court err in holding that the contract in question herein, calling for the provision of certain legal services to the Butte-Silver Bow local government, created an independent contractor relationship?

(2) Did the District Court err in holding that Section 39-30-103(7)(g), MCA, exempted the contract in question herein from the statutory employment preference claimed by Hamner?

(3) Did the District Court err in holding that even if Hamner were entitled to claim statutory public employment preference, his qualifications to provide the legal services in question herein were not substantially equal to those of the law firm to which the contract was awarded?

The relevant facts are as follows: The County advertised for proposals to provide legal services as follows:

“REQUEST FOR PROPOSAL

“The Butte-Silver Bow Local Government is currently accepting written proposals from qualified individuals and firms for the provision of certain legal services. These services are associated with the requirements imposed upon counties to provide for Juvenile Defender and the representation of the Butte-Silver Bow Welfare Department in legal proceedings (53-2-303 MCA.) In addition to the above two areas, Butte-Silver Bow also requires legal representation in certain personnel management functions.

“This request for proposals requires qualified respondents to adequately provide for the representation of inidigent [sic] youths in Youth Court, representation of the Butte-Silver Bow Welfare Department in such proceedings as required by law, and representation of the local government as deemed necessary or appropriate in areas such as grievance and arbitration matters, labor negotiations, police and fire commission proceedings, and other similar matters.”

Hamner submitted a proposal, and informed the County that he qualified for a veteran’s preference in County hiring. The County rated Hamner’s proposal ninth out of nine proposals, and contracted the services to a Butte law firm. The County refused to consider Hamner’s veteran’s preference status. Hamner objected and filed this action.

In the lower court, the County contended that the veteran’s preference provided by Montana law does not apply to hiring independent contractors. Hamner contended that there was no independent contract.

The County also argued that Hamner could not claim veteran’s preference because his proposal for the position was not substantially equal to the proposal of Henningsen and Purcell, the law firm which received the contract. Hamner responded that the advertisement provided the criteria for judging whether an applicant’s qualifications were substantially equal. The same arguments are made on appeal.

I.

The District Court found that the express language of the contract provided independent contractor status for Henningsen and Purcell. The District Court also concluded that: the County had no right to control the firm, the firm is customarily engaged in an independent practice, and that the contract to provide legal services for the County was unnecessary for the firm to continue its business. These facts led the District Court to conclude that the County awarded an independent contract.

Hamner attacks these findings arguing that the contract provision calling for monthly payments establishes an employment relationship. We disagree. The fact that payment occurs in monthly installments does not necessarily establish an employment relationship. We hold that the District Court correctly considered the facts relevant to determining the issue. See Standard Chemical Manufacturing v. Employment Security Division (1980), 185 Mont. 241, 605 P.2d 610. Thus, Hamner’s argument on this issue fails.

II.

Hamner contends that the District Court erred by failing to interpret the intent and effect of the words “employment”, “employ”, and “salaried”, as used in Section 7-5-2107, MCA, Section 7-4-2708, MCA, and Section 46-8-202, MCA, in conjunction with veteran’s preference and funding of public defenders under Section 3-5-901, MCA. See also Section 7-6-2351, MCA; Section 7-6-2511, MCA.

Section 7-5-2107, MCA, states that a board of county commissioners may “employ such persons as it deems necessary to assist the board in the performance of its duties”. Section 7-4-2708, MCA, gives contracting authority to county commissioners, upon consent of the county attorney, to “employ any other attorney licensed in Montana to perform any legal service in connection with the civil business of the county.” Section 46-8-202, MCA, gives counties the authority to create a public defenders office, and Section 3-5-901, MCA, directs funding, to the extent money is appropriated, for indigent defense. Section 7-6-2351, MCA, and Section 7-6-2511, MCA, also concern district court funding.

Hamner claims that the District Court failed to provide a proper declaratory judgment by not addressing these statutes in its memorandum. Hamner also contends that legislative intent, as well as the combined effect of these statutes, mandates application of veteran’s preference laws for the position at issue. We disagree.

First, in regard to the contention that the District Court inadequately addressed these statutes, we note that the lower court concluded that:

“Section 46-8-202, MCA 1985, does not require that the contract for provision of the legal services at issue herein be a ‘salaried office of public employment.’ ”

“Pursuant to Section 7-1-102, MCA 1985, Butte-Silver Bow County may provide any services or perform any functions not expressly prohibited by state law. Butte-Silver Bow County’s power and authority must be liberally construed. Section 7-1-106, MCA 1985. There is no express prohibition under Montana law precluding or preventing Butte-Silver Bow County from entering into an independent contractor relationship for provision of the legal services at issue herein.” (Emphasis added.)

This conclusion adequately addresses the contentions made by Hamner as to the meaning of the words in the statutes cited by Hamner. The import of the conclusion is that the statutes do not provide Hamner with the relief he requested.

Second, we agree with the District Court that neither the legislative intent nor the combined effect of the statutory words singled out by Hamner constitutes an express prohibition of independent contracts to provide public defender services. Under the facts of this case, Hamner’s claim in regard to these statutes fails without such a conclusion. See Section 39-30-103(7)(g), MCA; Section 7-1-106, MCA.

A further argument by Hamner is that funding for the contract pursuant to Section 46-8-202, MCA, mandates an employment relationship. The funding under the statute is for a salaried public defender. We also agree with the District Court on this point, and hold that the language in the statute does not constitute an express prohibition of independent contracts.

In summary, the statutes cited by Hamner provide discretion to the County to establish employee positions. They do not mandate that the positions be established to the exclusion of independent contracts.

We also reject Hamner’s contention that the existence of prior identical contracts which created employment rather than independent contractor relationships proves an employment relationship here. The mere existence of the prior relationships is not enough under the facts of this case to sustain the contention.

III.

Moreover, we agree with the District Court that even if Hamner could validly claim a veteran’s preference, Hamner’s proposal was not substantially equal. The County provided evidence showing that Henningsen and Purcell’s proposal better matched the requirements of the position.

Hamner contends, however, that the criteria for judging applicants for the position at issue is contained solely in the advertisement (set out above) soliciting proposals, and that the only criteria in the advertisement for judging applicants is that they be attorneys. We disagree. The advertisement solicits proposals demonstrating the applicant’s ability to provide extensive legal services for the County. An analysis of that ability, rather than the advertisement itself, constitutes the criteria for judging an applicant’s qualifications for the position. Here, substantial evidence supports the District Court’s finding that the County correctly determined that Hamner’s qualifications were not substantially equal to the firm awarded the contract. Thus, this contention fails.

Hamner also argues that the lower court’s adoption of the County’s proposed findings and conclusions in this case constitutes error. We disagree. Under the facts and applicable law of this case, we hold that the District Court did not act improperly in adopting the findings and conclusions proposed by the County.

Thus, we affirm all issues and contentions.

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


author:
MR. JUSTICE HARRISON
      MR. JUSTICE HUNT

text:
    CONTINENTAL INSURANCE COMPANY, Plaintiff and Respondent, v. GENE BOTTOMLY and Van Bottomly, Defendants and Appellants.
    No. 88-67.
    Submitted on Briefs July 14, 1988.
    Decided Aug. 18, 1988.
    760 P.2d 73.

      Graybill, Ostrem, Warner & Crotty, Michael G. Barer, Great Falls, for defendants and appellants.
    Williams Law Firm, Richard Ranney, Missoula, Murphy, Robinson, Heckathorn & Phillips, Kalispell, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Richard V. Bottomly and James Bottomly (petitioners) appeal from an order of the District Court of the Eleventh Judicial District in and for Flathead County denying their petition to intervene in a suit brought by Continental Insurance Co. (Continental) seeking subrogation from the defendants for damages arising from a fire at the petitioners’ cabin near West Glacier, Montana.

A fire destroyed the cabin on August 4, 1982 while the defendants, who are the brother and nephew of the petitioners, were staying at the property, which is located on Lake McDonald. Neither of the defendants were in the cabin at the time of the fire. The petitioners were insured against the loss of the cabin by Continental; this insurance policy named the two petitioners as well as any of their relatives, as the insured. On September 15, 1982, Continental issued payment of $50,000 to the petitioners to cover the loss of the cabin; on November 5, 1982, Continental issued payment of $25,000 more to the petitioners to cover the loss of the cabin’s contents. Continental filed suit against the defendants on July 3, 1984 claiming that their negligence was the proximate cause of the fire. Continental sought subrogation of $75,000 from the defendants.

The petitioners moved to intervene as the defendants in the suit under Rule 24(a) and (b), M.R.Civ.P., on October 5, 1987. The essence of their motion to intervene relies on the fact that Continental would like to collect from the defendants, who as relatives are insured and thus not subject to subrogation. The petitioners contend that such a suit by Continental is vexing and harassing and constitutes bad faith in coverage. Under Rule 24(a), they claim a right to intervene because their ownership of the property gives them an interest in Continental’s suit. Under Rule 24(b), they claim they should be allowed permissive intervention since their bad faith action against Continental has many factual and legal questions in common with Continental’s suit against the defendants.

The parties phrase the various issues in different ways but the dispositive question can be stated quite simply: Does a right of appeal lie for a proposed intervenor when the District Court had denied his motion to intervene? We answer the question negatively and affirm the District Court.

Rule 1, M.R.App.P. defines the limits of appealable actions. It specifically provides for appeals from final judgments, certain probate matters, as well as:

“(b)(1) . . .

“(2) From an order granting a new trial; or refusing to permit an action to be maintained as a class action; or granting or dissolving an injunction; or refusing to grant or dissolve an injunction; or dissolving or refusing to dissolve an attachment; from an order changing or refusing to change the place of trial when the county designated in the complaint is not the proper county; from an order appointing or refusing to appoint a receiver, or giving directions with respect to a receivership, or refusing to vacate an order appointing or affecting a receiver; from any special order made after final judgment; and from such interlocutory judgments or orders, in actions for partition as determine the rights and interests of the respective parties and direct partition to be made. In any of the cases mentioned in this subdivision the supreme court, or a justice thereof, may stay all proceedings under the order appealed from, on such conditions as may seem proper.”

Note that the rule does not provide for appeals from either the granting or denial of motions to intervene. A matter not specifically denominated in Rule 1 is not a proper subject of appeal. White v. Lobdel (1984), 208 Mont. 295, 302, 678 P.2d 637, 641 (denial of motion to permit joinder); citing Shields v. Pirkle Refrigerated Freight Lines, Inc. (1979), 181 Mont. 37, 42-43, 591 P.2d 1120, 1123 (order setting aside default judgment is not appealable as a special order made after judgment unless its effect is to finally dispose of the case).

The fact that the rule does not provide for appeals from orders denying intervention is fatal in this present action. State ex rel. Palmer v. District Court (Mont. 1980), 619 P.2d 1201, 1203, 37 St.Rep. 1876, 1877-78. The right of review was preserved in Palmer because there the matter arose on a writ of supervisory control. However, there too intervention was denied since the proposed intervenor’s rights already were being represented by a party to the action. Palmer, 619 P.2d at 1203.

Counsel for both Continental and the petitioners spend a great deal of time arguing over whether the proposed intervention in this matter would be by right or by permission. For there to be intervention by right, the petitioners contend that (1) their application must have been made timely; (2) they must have an interest in the property or transaction; (3) disposition of the suit might impair or impede their protection of the interest, and (4) the existing parties are not representing the petitioners’ interest. Using this framework it becomes apparent that the petitioners were not entitled to intervention by right. First, their motion to intervene, which was filed some three years after Continental had filed suit against the defendants, was not timely. See Archer v. LaMarch Creek Ranch (1977), 174 Mont. 429, 571 P.2d 379; Grenfell v. Duffy (1982), 198 Mont. 90, 643 P.2d 1184. Second, while it is undisputed that the petitioners have an ownership interest in the real property that was the-subject of the insurance contract, it is equally undisputed that they have received the benefits of that insurance contract and that Continental’s suit does not deal with the petitioners’ right to insurance. Continental’s suit deals with whether other parties are responsible to Continental for the fire loss. Lastly, the named defendants have retained the services of Murphy, Robinson, Heckathorn & Phillips, whose answer and counterclaims to Continental’s suit state the very same grounds and defenses as does the petitioners’ proposed counterclaim. Many of the paragraphs are exactly identical. The answer and counterclaim filed by the named defendant notes and defends the interests of the petitioners.

This discussion of the merits of the petitioners’ proposed intervention is overshadowed by the rule that appeals do not lie from orders on such motions. However, this discussion is relevant to show that there was reason for the District Court to deny the motion if it chose to do so. While the purpose of Rule 24 motions for intervention is generally to promote efficiency and avoid delay and multiplicity of suits, see State ex rel. Westlake v. District Court (1946), 119 Mont. 222, 235, 173 P.2d 896, 902-03; there are times when separate suits might work just as well. The District Court has determined that this is such a case.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, McDONOUGH and GULBRANDSON concur.

MR. JUSTICE HUNT

dissenting:

I dissent.

The majority’s contention that Rule 1, M.R.App.P. prevents appellants from appealing the order of the District Court is untenable. Although the majority has stated that Rule 24 is designed to promote efficiency and avoid delay by allowing all interested parties to participate in one action, they ignore this policy for purely technical reasons. A better approach is that taken in Moore’s Federal Practice.

“Rather, a jurisdictional rule has arisen under which an order denying intervention is appealable if intervention was a matter of right; but if intervention is permissive only, the order denying intervention is appealable only if the court has abused its discretion.” 3A Moore’s Federal Practice, paragraph 24.15 (1985).

“The appropriate solution therefore should be to treat all denials of intervention as final orders, but to reverse only where there was intervention of right or an abuse of discretion in denying permissive intervention.”

3A Moore’s Federal Practice, paragraph 24.15, (1985).

Richard V. Bottomly and James J. Bottomly are entitled to intervene as a matter of right under Rule 24(a), M.R.Civ.P. The four elements necessary to this intervention are easily met. First, the Bottomlys’ application was timely. Although the motion to intervene was not filed until 3% years after the complaint was filed nothing had occurred in the case except the filing of an answer. No prejudice or delay would be caused by allowing intervention at this point. Second, the Bottomlys claim an interest relating to the property involved in this action. The undisputed ownership of the Lake McDonald property by the Bottomlys sufficiently satisfies this element. Third, it is certain that the Bottomlys’ ability to protect this interest may be impeded or impaired without their intervention. The Bottomlys plan to sue plaintiff insurance company for bad faith for bringing suit against defendants whom the Bottomlys maintain are insureds under their policy. They would certainly be impeded from claiming the insurance company had no right to sue if this suit is allowed to proceed without them. Finally, the existing parties cannot adequately protect the Bottomlys’ interest in their property. The defendants have no proprietary interest in the land nor are they the policy holder.

Given that all the elements necessary for right of intervention are present, the Bottomlys should have been allowed to protect their interest in the most efficient manner. As it stands they shall have to instigate a separate suit having only one factor to distinguish it from the present one: the labels of plaintiff and respondent on the parties.

MR. JUSTICE SHEEHY concurs in the foregoing dissent of MR. JUSTICE HUNT.


author: MR. JUSTICE SHEEHY

text:
    In re the MARRIAGE OF SHEILA G. LYMAN, Petitioner and Appellant, and CHARLES E. LYMAN, Respondent.
    No. 88-123.
    Submitted on Briefs July 14, 1988.
    Decided Aug. 18, 1988.
    Rehearing Denied Oct. 31, 1988.
    762 P.2d 203.

      Warden, Christiansen, Johnson & Berg, Gary R. Christiansen, Kalispell, for petitioner and appellant.
    Hash, Jellison, O’Brien & Bartlett, M. Dean Jellison, Kalispell, for respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Sheila Lyman appeals from the judgment of the District Court of the Eleventh Judicial District, Flathead County, which denied her petition to modify a prior dissolution decree. We affirm.

The issues before the Court are:

1. Did the District Court err when it concluded there was insufficient evidence of fraud to justify setting aside the parties’ dissolution decree?

2. Was the District Court’s failure to increase the amount of child support originally ordered clearly erroneous?

Charles Lyman (Husband) and Sheila Lyman (Wife) were married in Skokie, Illinois on June 20, 1964. Three children were born of the union but only two remained minors when the marriage was dissolved in 1984. One child remained at home during the instant controversy.

During the course of the marriage, Husband controlled the family finances. Husband testified that it was traditional in his family that spouses were not made aware of financial matters and that he followed that practice. Consequently, Wife was not fully informed about the family’s income or assets.

The controversy at hand arises as a result of Wife’s purported lack of knowledge. Prior to the entry of the dissolution decree, Wife initiated discovery procedures designed to determine Husband’s financial worth. She requested, inter alia, a list of debts and of assets, information concerning the lease on a Godfather’s Pizza establishment, information concerning a beer and wine license, the parties’ 1983 joint income tax return, and financial information about Husband’s Mother. However, the parties entered into a separation agreement before the information was fully delivered.

It provides, in pertinent part:

“13. The parties have agreed upon an equitable division of the marital estate which division is reflected on Exhibit A hereto. The division has been predicated on an agreement which reflects the unique circumstances of this case in that Husband is and has been the beneficiary of certain trusts and family gifts which have enhanced the ability to accumulate the marital estate and which agreement consists of the parties agreeing that Wife would make no claim to any interest in the trusts or gifted property and Husband would concede that the assets reflected on said Exhibit be treated as resulting from the equal contribution of both parties. For reasons of privacy, the said Exhibit does not contain the values agreed upon for the various assets; however, the parties have agreed upon values and the division amounts to an equal division of the marital assets between the parties. Exhibit B to the copies retained by the parties reflects the agreed values. It is further agreed that Husband shall have a right of first refusal to meet the terms of any sale of the lot owned by Sheila and located adjacent to the family residence.

“14. In accordance with the provisions of Section 40-4-201 M.C.A., it is agreed that the terms of this agreement, other than custody, support and maintenance matters, shall not be set forth in the Decree to be entered by the Court, but the Court may identify this agreement and shall have found the same not to be unconscionable, reserving the power to enforce its terms by all remedies available for enforcement of a judgment. Except for terms relating to support, custody or visitation of the children, this agreement may not be modified by the Court.

“15. Each of the parties hereto has been represented by Counsel of their choice and each agrees that there has been no reliance on representations by the other in reaching this agreement. Each party has had access to such information as was deemed necessary and has arrived at an independent judgment as to the equitable ness and reasonableness of the arrangement effected hereby.” (Emphasis added.)

The agreement and property settlement awarding each party in excess of $500,000 in assets was subsequently adopted by the District Court. Wife now seeks to modify the property, maintenance and child support provision of the agreement on the basis of the Husband’s fraudulent failure to fully inform her of the value of family assets.

Generally, the courts of this state are bound by separation agreement freely entered into by the parties unless the court determines the agreement to be unconscionable. Section 40-4-202, MCA. However, the adoption of such an agreement does not forever strip a court of its inherent equitable authority to re-open an agreement.

“A court of general jurisdiction has the right, entirely independent of statute, to grant relief against a judgment obtained by extrinsic fraud and may grant that relief either on motion in the original cause or upon separate equity suit ...”

Cure v. Southwick (1960), 137 Mont. 1, 8, 349 P.2d 575, 579.

In the instant case, Wife contends that Husband’s failure to fully inform her of the family assets, misrepresentations concerning certain debts and property, and the forgery of her name on the couple’s joint income tax return is sufficient to demonstrate extrinsic fraud. However, in order to demonstrate extrinsic fraud, Wife must show “a material misrepresentation or concealment of assets” which has prevented her from fully trying her case and that the other equities such as laches or negligence are not present. Pilati v. Pilati (1979), 181 Mont. 182, 189, 592 P.2d 1374, 1378. We conclude she has not done so.

Prior to the time of the signing of the separation agreement, Wife was clearly aware the tax return would soon be due; that the wine and beer license remained in Husband’s name; that the transfer of the pizza parlor interest had not been recorded; that Husband could be compelled to produce the documents; and that she might not receive 50% of the family assets if the matter was decided by a court. Nonetheless, Wife voluntarily chose to enter into the settlement agreement rather than waiting for the documents. Having received the benefit of the bargain, she will not now be heard to describe her own decision as fraud. See e.g., Lance v. Lance (1981), 195 Mont. 176, 635 P.2d 571.

We therefore conclude that the District Court correctly determined there was insufficient evidence of fraud to justify setting aside the agreement. Wife’s attempt to modify the maintenance provision of the agreement must similarly fail.

The second specification of error concerns the District Court’s refusal to increase child support from $1,000 per month to $2,200 per month so that the remaining minor child can properly engage in ski activities. However, we conclude that the child’s need for a new four wheel drive vehicle and traveling expenses while skiing is not a change in circumstances so substantial and continuing as to render the child support provisions of the original decree unconscionable within the meaning of Section 40-4-208, MCA.

The judgment is affirmed.

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


author: MR. JUSTICE HARRISON MR. JUSTICE SHEEHY,

text:
    KAREN McCAIN, Plaintiff and Appellant, v. JOHN BATSON, M.D., Defendant and Respondent.
    No. 88-134.
    Submitted on Briefs June 30, 1988.
    Decided Aug. 18, 1988.
    760 P.2d 725.

      James J. Serenar, Nash, Guenther, Zimmer & Serenar, Bozeman, for plaintiff and appellant.
    Richard F. Cebull, Anderson, Brown Law Firm, Billings, for defendant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal of summary judgment granted in favor of defendant John Batson, M.D. Plaintiff/appellant Karen McCain (McCain) brought this action in the District Court of the Eighth Judicial District, Gallatin County, Montana, the Honorable Joseph B. Gary presiding. McCain sought to recover damages for the negligent treatment of her injuries by the defendant/respondent, John Batson, M.D. (Dr. Batson). Dr. Batson sought summary judgment by invoking immunity of the Montana Good Samaritan Statute Section 27-1-714, MCA. On February 4, 1988 the District Court granted Dr. Bat-son’s motion for summary judgment. McCain now appeals.

McCain and two friends, Sherry Warner (Warner) and Rosemary Checketts, (Checketts) spent a weekend in West Yellowstone, Montana, arriving the morning of September 25, 1982, from Ogden, Utah. They planned to stay with Warner in her condominium. That evening, after preparing and eating supper at home, the three friends decided to go into the town of West Yellowstone. The three decided to walk into town as Warner’s truck battery was dead. The condominium was not far from town so they walked to the nearby Stagecoach Inn. After spending some time at the Inn, the women became separated and about 11:00 p.m. McCain decided to return alone to the condominium.

McCain was unfamiliar with the area and while walking back in the dark fell into an eight-foot deep excavation pit. The pit contained rebar set in concrete at six inch intervals. As a result of the fall she severely impaled her upper left leg on a piece of rebar. After extracting herself off the rebar, McCain crawled out of the pit and crawled to a lighted doorway of a nearby condominium. McCain rapped on the door of a condominium occupied by Dr. James Grindley, a Bozeman radiologist, and his wife. Mrs. Grindley answered the knock on the door. After McCain told Mrs. Grindley about her accident and injury, Dr. Grindley went to the Stagecoach Inn to retrieve her two friends. Throughout this time, Dr. Grindley did not mention he was a physician and McCain remained on the patio or lawn outside of the condominium. Dr. Grindley is a radiologist with extensive surgical and emergency room experience. He did not initially examine McCain’s injury, and in a deposition Dr. Grindley admitted that he did not have any medical equipment at the condominium.

McCain’s friends returned with Dr. Grindley and attempted to assist her. Warner, a surgical assistant had gotten her box of medical supplies and removed McCain’s pant-leg with a pair of bandage scissors. At that time Dr. Grindley informed them that he was a physician. Dr. Grindley examined the wound and advised all present that while technically he could repair the wound, he had no desire to do so without being able to “debride it and clean it.”

At deposition Dr. Grindley testified he then offered to drive McCain and her friends to the nearest hospital in Ashton, Idaho. They refused his offer and informed Dr. Grindley that they believed there was a doctor staying in town who could help them and that if they needed Dr. Grindley’s services later, they would contact him.

Dr. Grindley further testified that at that time the wound may have “been bleeding a tiny bit. . . and that her panty hose seemed to be holding the tissues all in good position so that it was minimizing any bleeding.” McCain testified that at that time she had little pain and the leg was “dead, numb, dead.” After taking McCain back to Warner’s condominium, and some three hours after the accident, Warner was able to locate where defendant/respondent Dr. Batson was staying. Dr. Batson got up out of bed, left the condominium where he was staying and agreed to come to the Warner condominium to see what could be done. Dr. Batson testified that McCain was lying on a couch and that when he examined the wound he could see considerable dirt and mud in the wound. With the help of Warner and her surgical kit which contained instruments, suture, IV solutions, and other items that could be used to clean the wound, Dr. Batson debrided the wound as best he could. He then loosely sutured the wound and dressed it with bandages from the medical kit. All of this was done under the light of a lamp in the Warner condominium.

Dr. Grindley testified at deposition that he informed all three women soon after the accident that the wound had to be treated at a hospital and under a general anesthesia and that the wound needed to be treated surgically. Dr. Batson’s evaluation of the injury mirrored Dr. Grindley’s that this was not an emergency situation but that McCain should go to a hospital as soon as possible. Dr. Batson informed the women that he would call the hospital in Ashton, Idaho and order pain and antibiotic medication and a tetanus shot to be available to McCain the next morning.

It should be noted that the reason McCain did not immediately go to a hospital was that the ambulance at West Yellowstone was not available as it had taken someone to Bozeman, Montana, just before she was injured and would not return until the next morning. As previously noted, the truck used by the parties to travel to West Yellowstone had a dead battery but would be repaired by the next morning. As the hour was very late, the three spent the rest of the night at the Warner condominium and planned on returning to Ogden later that morning/early afternoon via Ashton, Idaho.

Dr. Batson testified that later that morning about 11:00 a.m., he returned to check on the three women. He found them still packing and preparing to return to Ogden. Dr. Batson said he advised them again that his suturing of the wound was a first-aid type procedure and it was necessary that they go to a hospital and have the wound properly treated.

According to the deposition of Checketts, they did stop at the Ash-ton, Idaho hospital where they got some pain medication and antibiotics which served as treatment until McCain returned to Ogden. They then drove on into Ogden arriving at approximately 7:00 p.m. and took McCain to her apartment where it was their understanding that McCain would go to the hospital and see a doctor the next morning. However, McCain did not go to the hospital or see a doctor until about one week later. By this time her wound had become infected and required considerable surgery and medical treatment.

On September 25, 1985, three years to the date of the injury, Dr. Batson was sued by McCain for suturing the wound without adequate debriding, or cleansing of the contaminated wound and for failing to inform anyone that the procedures that he followed were not final procedures. In other words, McCain claims he failed to inform her that the wound would have to be opened up, recleansed, debrided, and resutered. McCain alleges that this is a case of malpractice which has caused her serious injury.

This case was presented to the District Court on depositions of Sherry Clarey Warner, Karen McCain (plaintiff and appellant), Rosemary Checketts, Dr. Wesley G. Harline, Dr. Lee J. Malan (a surgeon who later operated on her at Ogden, Utah), Dr. John Batson (defendant and respondent), and Dr. James S. Grindley (the radiologist who first saw the injured McCain at his door). Based on the information contained in the depositions, the District Court granted Dr. Batson’s motion for summary judgment. Attached to said summary judgment was a memorandum of Judge Joseph Gary concerning the reasons for his granting of summary judgment.

Several questions are presented for our consideration:

1. Did the District Court improperly find that the provisions of the Montana Good Samaritan Statute, Section 27-1-714, MCA, were applicable to an instance where the negligent care rendered was remote in time and location to the scene of the accident or emergency, and was otherwise without the purpose of the act?

2. Did the District Court improperly usurp the function of the jury by resolving questions of fact in its grant of summary judgment?

The first issue concerns the Montana Good Samaritan Statute, Section 27-1-714, MCA, which reads:

“(1) Any person licensed as a physician and surgeon under the laws of the state of Montana, any volunteer firefighter or officer of any nonprofit volunteer fire company, or any other person who in good faith renders emergency care or assistance without compensation except as provided in Subsection (2) at the scene of an emergency or accident is not liable for any civil damages for acts or omissions other than damages occasioned by gross negligence or by willful or wanton acts or omissions by such person in rendering such emergency care or assistance.

“(2) Subsection (1) includes a person properly trained under the laws of this state who operates an ambulance to and from the scene of an emergency or renders emergency medical treatment on a volunteer basis so long as the total reimbursement received for such volunteer services does not exceed 25% of his gross annual income or $3,000 a calendar year, whichever is greater.

“(3) If a nonprofit subscription fire company refuses to fight a fire on nonsubscriber property, such refusal does not constitute gross negligence or willful or wanton act or omission.”

According to the legislative history of Section 27-1-714, MCA, (Good Samaritan Statute) it was passed by the Legislature in 1963, amended by Section 1, Chapter 390, Laws of Montana 1979, and Section 1, Chapter 330, Laws of Montana 1985, and Section 1, Chapter 133, Laws of Montana 1987. Reference is made to the legislative history of the Good Samaritan Statute because this is a first impression case in this state on the interpretation of the Good Samaritan Statute.

This Court has considered appellant McCain’s initial brief and reply brief and her argument appears to be that the Good Samaritan Statute has no application to her situation. McCain alleges that Dr. Batson was not a good Samaritan and recognizes that the Good Samaritan Statute provides immunity from his malpractice. McCain first argues that a physician must demonstrate that he is a member of a protected class. Dr. Batson was not a licensed physician in the state of Montana, although he is licensed to practice in Wyoming and Idaho. McCain argues he is, therefore, any person within the meaning of the statute. While she agrees with the fact that the doctor here is protected under the act, she alleges that immunity only attaches to malpractice which is committed at the scene of the accident or emergency.

She argues that after falling into the excavation pit, McCain crawled to Dr. Grindley’s condominium and she was later carried to Warner’s condominium. Therefore Dr. Batson’s care, such as it was, was too remote in time and location to the scene of the accident. She alleges with this result Dr. Batson could not demonstrate that this was an “emergency” situation. McCain further argues that Dr. Batson’s negligent care was performed when he made a “housecall” and he did not happen upon an emergency. McCain argues that because Dr. Batson’s negligent care was not during an emergency situation, though her injuries were serious, they were not life threatening and therefore the best course of action would have been to postpone care until she reached a hospital.

We, as the District Court did, have difficulty with this argument. The central question presented to the District Court and one which is subject to our review is whether the Good Samaritan Statute applies. We find, as the District Court did, that it does. Thus, the standard of review is gross negligence and willful or wanton acts or omissions rather than ordinary negligence — medical malpractice. We agree with the District Court’s finding that after reviewing all of the deposition testimony, there is no evidence whatsoever that there was such a serious level of negligence exhibited by Dr. Batson to warrant any action in this case.

The District Court noted the problem here was not that there were differing versions of the facts but that the facts were not ultimately pertinent to the decision. Only two of the depositions indicate a fact variance. One is the deposition of the appellant, McCain, which is to say the least self-serving; second is the deposition of Dr. Grindley who testified that he disagreed with the decision of Dr. Batson in suturing the wound. Dr. Grindley added that the manner of Dr. Bat-son’s suturing indicated to him some permanence of treatment. However, on cross-examination it should be noted that it was Dr. Grindley’s opinion that there was neither gross negligence nor gross malpractice in this. During the cross-examination Dr. Grindley was asked a number of questions which are illustrative of his position.

“Q. I get the impression that your biggest criticism is the fact that he sutured it.

“A. Yes. I just don’t know what the need for it was, you know, if he was intending for her to go to the hospital right away and having it, you know, treated further.

“Q. Now do you know what gross negligence is on the part of a doctor as opposed to ordinary malpractice or ordinary negligence?

“THE WITNESS: No, I guess I really couldn’t give you a real good definition of that. I imagine it’s where you had some idea maybe that you were operating out of the boundaries that you should be operating in or working in as a physician.

“BY MR. CEBULL [respondent’s attorney]:

“Q. Well are you critical of anything that Dr. Batson did other than suturing the wound?

“A. I’m not sure, you know, really what he did. You’ve told me what he did and, no, I couldn’t say that I could be critical because I really don’t know what else he did. I haven’t read those depositions or anything so I don’t know.

“Q. But you are critical of the suturing, right?

“A. Right. I really just don’t know why you would put sutures in and then send someone off to the emergency room to have the wound treated further.

“Q. And then as I understand it, you arrived at this opinion, or you arrived at this criticism of Dr. Batson for him placing the sutures in the wound before you came here today, didn’t you?

“A. Yes.

“Q. Okay. Now in your opinion, was the placement of those sutures in the wound by Dr. Batson gross negligence?

“A. I don’t know where he placed them. Do you mean just putting them in there?

“Q. I mean just the fact that he sutured the wound. That’s my understanding of your criticism of Dr. Batson.

“A. I don’t know that I would call it gross negligence, but it’s just — it’s not the customary thing that a physician would do in treating — giving first aid to a wound, in other words.

“Q. Well, generally, you know that if a physician violates an acceptable standard of care, that’s malpractice, negligence, you know that, don’t you?

“A. Uh huh.

“Q. Okay. And I get the impression that you are saying that Dr. Batson’s suturing this wound was a violation of an acceptable standard of care.

“A. I would think so. I think if he intended to — had thought that he had debrided it and cleaned it out thoroughly and had done the primary care of the wound and sutured it then, I wouldn’t have much argument with that. But from what you tell me, where he puts just a few sutures in it and then sent her off to the emergency room to have it further treated, I say why? Why subject a patient to sticking them with a needle and whatever you do to put sutures in just to have them taken out in an hour or so, so it can be cleaned out?

“Q. Well, what have you been told about whether this was temporary or permanent, final suturing?

“A. Well, you just alluded to it a while ago.

“Q. I know, but have you been told anything before that?

“A. I’m not sure that I have.

“Q. Well, if Dr. Batson had intended this to be a final repair job and he had debrided it and cleansed it, at least in his judgment as good as he could, would the fact that an infection occurred later on indicate to you that he committed malpractice?

“A. No. Because a certain percentage of wounds, like I said, would get infected regardless of how thorough a job you do of cleaning them.

“Q. Even if they are done in a hospital in an OR suite with general anesthesia and everything, right?

“A. Right.

“Q. Well, in your opinion, if this was a temporary suturing job by Dr. Batson, did that, in your opinion, constitute gross negligence, gross malpractice?

“A. Well, you see you really haven’t told me what gross malpractice is yet or gross negligence.

“Q. Well, it’s a heck of a lot worse than ordinary malpractice.

“A. I guess in my opinion I still would say — I would say it’s what most people, most physicians would not do that if they expected the patient, within ah hour or so, to be at a facility where they would have it done and so why do it?

“Q. Okay.

“A. When a dressing will do the same thing.

“Q. Are you going to testify in this case that Dr. Batson committed gross malpractice, gross negligence, in suturing that wound if it was a temporary repair?

“A. From your description of gross negligence, I would probably say no. You see, I might change my mind. You’ve made a lot of this hypothetical and you said that if he had all of the equipment available, if everything was in that box and he had some other things available, you know, could he have done it. And I said yes but, you know, it was my opinion that I was not about to sew up that kind of a wound, you know, with the equipment I could see in the box there and feel like I was doing a service to the patient.”

Dr. Grindley later testified in deposition:

“Q. Well, apparently before today you had formulated an opinion that Dr. Batson had committed at least ordinary malpractice, ordinary negligence, right?

“A. I wouldn’t say that. I just think he’s braver than I was to try to — you know, if he was going to try to do primary care of that wound there in some condominium or in his wherever he was staying, you know, he was braver than I was to attack that kind of situation without what I would like to have available, you know, to do it, and if he was doing it just kind of as a first aid thing, then I really have no idea why he would put sutures in the patient’s leg.”

When questioned later regarding deposition testimony from McCain’s treating physicians in Utah, one being a plastic surgeon and the other being a general practitioner, Dr. Grindley answered as follows:

“Q. Now these physicians down in Utah, their depositions have been taken — the one a plastic surgeon and another I’m not really sure what his specialty was, but you don’t know what they have said about this?

“A. No, I don’t.

“Q. If they said that, in their opinion, Dr. Batson didn’t commit malpractice in any way, you would disagree with them then, I guess.

“A. I couldn’t really — you know, it just comes back to the same thing, you know, I don’t know actually what he did do, I didn’t see what he did work with, whether he was doing a primary closure with it. And if I could see what he had used and if I felt it was appropriate, then I would say, you know, it probably was appropriate treatment for her. But, you know, just to put stitches into a wound like this and send someone off to the hospital to have it further repaired, I just don’t think that’s customary practice.”

When asked if he offered to treat McCain’s wound, Dr. Grindley stated:

“No. Just like I said earlier, I just told her that I technically could repair the wound with what she had there [Warner’s medical kit], but that I just felt that I would not want to do it without having a better circumstance to debride the wound thoroughly and thoroughly cleanse it and irrigate it before it was sewn up.

“Well, what I was basically saying was that I wouldn’t do it and I felt like they ought to go to the nearest hospital, which was in Ash-ton, Idaho, and their car wasn’t starting and I told them that I would be glad to take them over there to Ashton if they wanted me to.”

It is interesting to note that from the time the first Good Samaritan Statute was passed in 1959, up until 1981, only fourteen reported cases in other jurisdictions dealt with those jurisdictions’ statutes, and only five cases where the statute was found applicable. See, Good Samaritan Laws Who Needs Them.?: The Current State of Good Samaritan Protection in the United States, 21 S.Tex.L.J. 341 at 350 (1981).

A review of Good Samaritan statutes of other states indicates that the medical situation must be an emergency situation before immunity can be invoked, yet few states have defined the term “emergency” in their statutes, 21 S.Tex.L.J. at 346. In Colby v. Schwartz (1978), 78 Cal.App.3d 885, 144 Cal.Rptr. 624, the California Court of Appeals addressed the competing interest in numerous other states’ statutes. In Colby that court set forth the reason for the enactment of the Good Samaritan statutes. That court noted:

“The enactment of Good Samaritan legislation represents the resolution of competing interests. On the one hand, there is an interest in the vindication of the rights of the malpractice victim. On the other hand, there is the need to encourage physicians to render emergency medical care when they otherwise might not. Where applicable, the legislation favors the latter over the former.”

Colby, 78 Cal.App.3d at 893-894, 144 Cal.Rptr. at 628-629. We find that that is the central reason for the legislation here in Montana and that the standard of review is one of gross negligence and willful or wanton acts or omissions, rather than ordinary negligence/medical malpractice.

Here Dr. Batson rendered temporary first-aid with limited medical equipment having been awakened early in the morning to do this for McCain and thereafter having warned her and her two companions that it was necessary to obtain immediate care both in Ashton, Idaho and when she got home to Ogden, Utah. As previously noted all parties agree, except McCain and Dr. Grindley, that what was done under the circumstances was a first-aid treatment by Dr. Bat-son with directions to immediately seek help when she got home and the fact that she waited over a week before seeking further medical treatment resulted in infection and the necessary surgery that followed. McCain’s treating physician and treating surgeon both testified that under the circumstances what Dr. Batson did was neither negligent nor malpractice.

As we have previously noted in the testimony of Dr. Grindley, he did not and could not testify that Dr. Batson was guilty of gross negligence or willful or wanton acts or omissions. Absent any proof of gross negligence on the part of Dr. Batson, McCain claims that the Good Samaritan Statute did not apply to the facts of this case, and that therefore proof of ordinary negligence is all that she had to prove in her claim against Dr. Batson. She does this by arguing that summary judgment was improper. The general rule surrounding summary judgment and whether it should or should not be granted has been well set forth in the decisions of this Court. As respondent noted we need not go to the Eighth Circuit, the states of Indiana, Louisiana and Hawaii for decisions regarding the appropriateness of summary judgment.

Rule 56(c), M.R.Civ.P. provides for a case of this type. In Shimsky v. Valley Credit (1984), 208 Mont. 186, 676 P.2d 1308, this Court held that when a case is disposed of below on a motion for summary judgment before a judge sitting without a jury and no testimony is taken as the facts are relatively uncontested, the scope of review is much broader than in other appeals and the Supreme Court is free to make its own examination of the entire case and reach a conclusion in accordance with its findings. Shimsky, 676 P.2d at 1310. Furthermore, the Court will uphold the result below if it is correct, regardless of the reasons given below for the result. See, Montana Department of Natural Resources and Conservation v. Clark Fork Logging Co., Inc. (1982), 198 Mont. 494, 646 P.2d 1207.

Here the District Court very carefully noted the elements contained in Section 27-1-714, MCA, Montana’s Good Samaritan Statute:

“Any person licensed as a physician and surgeon under the laws of the State of Montana, ... or any other person who in good faith renders emergency care or assistance without compensation ... at the scene of an emergency or accident is not liable for any civil damages for acts or omissions other than damages occasioned by gross negligence or by willful or wanton acts or omissions by such person in rendering such emergency care or assistance.”

District Court carefully noted the plaintiff’s contention, that Dr. Batson offered care gratuitously and for no compensation, the plaintiff’s concession that Dr. Batson was in a protected and immune class, the plaintiff’s denial that there was an emergency at the scene of the accident and the plaintiff’s conclusion, therefore, that the act does not apply in this case.

The court carefully analyzed the testimony that was given and finds that there was an “emergency” situation and no gross negligence or willful or wanton acts were committed. The court further found that all of the elements of the Good Samaritan Statute were met and that its standard of gross negligence applied to the facts in this case. While this Court generally prefers a trial on the merits of a case to dismissal by summary judgment, we affirm the District Court in its findings. We are willing to look at the facts presented and not force a defendant to go through a prolonged, expensive and emotionally debilitating trial for such well intended and medically accepted deeds as Dr. Batson performed at West Yellowstone, Montana. Tne relevant and material facts point to this conclusion and the ultimate question is a matter of law. We further agree with the District Court in this case that Dr. Batson was a good Samaritan, that he acted in an emergency, and since there has been no showing of gross negligence, the decision of the District Court to grant summary judgment is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HUNT and GULBRANDSON concur.

MR. JUSTICE SHEEHY,

dissenting:

The recent penchant of this Court to approve summary judgments from the District Court where genuine issues of material fact exist is shown again in this case. There are two genuine issues of material fact presented here: (1) whether an emergency existed requiring, as a good Samaritan, the assistance of Dr. Batson; and (2) if the answer to the first query is affirmative, whether Batson was guiltv of gross negligence; and if the answer is no to the first query, whether he was guilty of ordinary negligence.

We said in Kronen v. Richter (Mont. 1984), [211 Mont. 208,] 683 P.2d 1315:

“Summary judgment is never to be used as a substitute for trial if a factual controversy exists (citing a case). Summary judgment is only proper if the pleadings, depositions, answers to interrogatories and admissions on file show that there is no genuine issue of material fact (citing a case) . . .”

683 P.2d at 1317.

In granting a motion for summary judgment, the discretion of the District Court, and of this Court in reviewing documents is limited.

“A discussion of discretion divides into two parts: Discretion in granting and in denying a motion for summary judgment. As we shall see, the Court cannot draw upon any discretionary power to grant summary judgment; the Court may however exercise its sound discretion in denying a motion of summary judgment although on the record the movant has made out a case therefor.”

6 Moore’s Federal Practice (Part II), page 56-601, paragraph 56.15[6] (1987).

The plaintiff has lost this appeal because the facts are not appealing. The District Court expressed the problem:

“The court would admit to some problems of keeping an impartial perspective in this case, but is satisfied, when all is said and done, that this is a fair decision based on thorough research, sufficient facts, and clear rules of law. Nonetheless, the court cannot help but wonder where our society is taking itself by bringing cases like this to the courtroom. We may be well on our way to making an endangered species out of good Samaritans who are forced to stifle their good impulses out of fear of being taken to court. If this is the trend, it is indeed unfortunate.”

The other side of that coin is that if Karen McCain has sustained serious and permanent damages to her leg because Dr. Batson, instead of rendering aid sufficient for the moment, in effect, “over-treated” her, she is entitled to have her case heard in court, even though Dr. Batson acted from the best of impulses.

The first issue here was whether an emergency existed at the time of Dr. Batson’s treatment. The District Court balanced those issues of fact and decided that an emergency existed. In doing so, it determined a question of fact, an improper procedure where summary judgment is concerned.

First, the District Court ticked off the facts which contended for no emergency: There was no major blood loss; her life was not in danger and she was not going to die; she would not lose the limb; the leg had a numb sensation and there was an absence of pain immediately following the injury; and she was neurologically intact. Opposing that, said the court, was that the witnesses agreed the cut was extremely serious, possibly bone deep; there was no hospital in town; the Ashton hospital had no anesthesia facilities; there was no available ambulance; no police officer or other friends to provide transportation to a hospital; and reason to believe the “limb was at risk.” Not mentioned by the District Court was the testimony of Dr. Grindley that a simple dressing would suffice under the circumstances, and that suturing the wound presented a case of final repair.

Since there existed a genuine issue of material fact, one that should have been decided by a trier of fact, such as a jury, the issue should not have been decided on summary judgment.

The second issue of fact was whether the attendance by the doctor in this case constituted either ordinary or gross negligence. The majority, without defining gross negligence in this instance, has determined that there was no gross negligence on the part of the defendant doctor. None of the witnesses defined what was meant by gross negligence. The only definition on which this Court relies is the following:

“Q. Well, in your opinion, if this was a temporary suturing job by Dr. Batson, did that, in your opinion, constitute gross negligence, gross malpractice?

“A. Well, you see you really haven’t told me what gross malpractice is yet or gross negligence.

“Q. Well, it’s a heck of a lot worse than ordinary malpractice.”

If any District Court in Montana had given a jury an instruction that so defined gross negligence, we would in high dudgeon reject it as inadequate. Here, the majority, without otherwise defining gross negligence as it applies under the Good Samaritan statute, undertakes no other definition to resolve the fact issue of gross negligence.

We might entertain in ourselves a serious doubt that the plaintiff would prevail if she had been permitted to take her case to a jury to resolve the fact issues. Our personal feelings about the propriety of a case have no place in deciding questions on summary judgment. If issues of fact exist, as Professor Moore notes, supra, there is no discretion, in our Court or in the District Court, to grant summary judgment.

I would reverse and remand for further proceedings.


author: MR. JUSTICE GULBRANDSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAMES D. COATES, Defendant and Appellant.
    No. 87-428.
    Submitted on Briefs July 14, 1988.
    Decided Aug. 22, 1988.
    759 P.2d 999.
    Bruce L. Hussey, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Clay R. Smith, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Co. Atty., Missoula, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Defendant James D. Coates appeals his conviction of four counts of felony theft in Missoula County District Court. We affirm.

Three break-ins occurred in Missoula, Montana in early September of 1986 which resulted in the theft of various power tools and firearms. On September 10, 1986, the Great Falls Police Department received a telephone call from an individual who stated that James D. Coates (Coates) was attempting to sell him guns and power tools at the Cowboy Bar. The caller identified Coates’ vehicle as a green Ranchero or El Camino with Missoula County license plates and several large cardboard boxes in the rear.

Based on the information received from the informant, Great Falls police officers proceeded to the Cowboy Bar where they found a vehicle matching the description given to them. A registration check revealed that the vehicle was registered to Coates. The officers observed two individuals exit the bar at different times and inspect the boxes in Coates’ vehicle. One of the individuals, Patricia Werring (Werring), later drove away with a box in her vehicle that was similar to the boxes in Coates’ vehicle.

The officers followed and stopped Werring’s vehicle. Werring indicated that the box in her vehicle belonged to Coates and the officers confiscated the box with Werring’s permission. The box contained a miter box saw. Werring was released and the officers returned to the Cowboy Bar to observe Coates’ vehicle. Coates, Richard Horton (Horton), Rebecca Wagner (Wagner), and Bruce Werring soon exited the bar. Coates, Horton, and Wagner, all who had open containers of alcoholic beverages in their hands when they left the bar, departed in Coates’ vehicle.

The officers stopped Coates’ vehicle and inquired about the contents of the boxes. Coates claimed ownership of the contents of the boxes in his vehicle and the contents of the box confiscated from Werring. Coates and his passengers were arrested for violation of the open container law and Coates’ vehicle was impounded. The next day, the Great Falls police department obtained a search warrant and searched Coates’ vehicle. The contents of the boxes were identified as power tools and firearms stolen in the three Missoula break-ins.

Coates was charged by information on November 7, 1986, with four counts of felony theft pursuant to Section 45-6-301, MCA. Prior to trial, Coates moved for disclosure of the identity of the State’s confidential informant. The District Court denied Coates’ motion on April 21, 1987. A jury trial commenced on April 28, 1987, and a guilty verdict was returned on May 1, 1987. Coates was sentenced on June 15, 1987 to ten years imprisonment at the Montana State Prison on each count, with three years suspended on each of the four concurrent sentences. Coates appeals and raises the following issue: Did the District Court abuse its discretion in denying the motion for disclosure of the identity of the confidential informant whose report led to the surveillance of Coates’ vehicle?

Coates seeks to compel disclosure of the informant’s identity through Rule 502(c)(2), M.R.Evid. Rule 502 provides in pertinent part as follows:

“(a) Rule of Privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law.

“(c) Exceptions and limitations.

“(2) Testimony on relevant issue. If it appears in the case that an informer may be able to give testimony relevant to any issue in a criminal case or to a fair determination of a material issue on the merits in a civil case to which a public entity is a party, and the public entity invokes the privilege, the court shall give the public entity an opportunity to show facts relevant to determining whether the informer can, in fact, supply that testimony.”

The Montana Supreme Court Commission on Evidence comments indicate that Rule 502 adopted the following balancing test as expressed in Roviaro v. United States (1957), 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639:

“We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.”

Roviaro, 353 U.S. at 62, 77 S.Ct. at 628-29, 1 L.Ed.2d at 646. Section 46-15-324(3), MCA, is also relevant to the issue on appeal and provides as follows:

“(3) Disclosure of . . . the identity of an informant who will not be called to testify is not required if:

“(a) disclosure would result in substantial risk to the informant or to his operational effectiveness; and

“(b) the failure to disclose will not infringe the constitutional rights of the accused.”

Coates contends that the confidential informant may be able to give testimony which is relevant to whether there was probable cause for his arrest. The State points out that Coates was arrested for an open container violation and that the informant’s information was not used as a basis for that arrest. The State also contends that the informant’s conversation only supplied the impetus for placing Coates’ vehicle under surveillance. For that reason, the State did not rely on the informant’s information at trial and avoided any reference to the informant or to his or her conversation with law enforcement officers. Finally, the State asserts that the informant’s testimony would have been cumulative to that of other witnesses in the trial.

The District Court noted that Coates’ subsequent arrest for felony theft was predicated on the arresting officers’ independent investigation. That investigation revealed that Coates had attempted to sell certain items to the informant and others, that Coates claimed ownership of the items, and that the items were stolen. Consequently, it is clear under the undisputed facts of this case that the informant’s information was not used as a basis for probable cause to arrest Coates for felony theft.

Coates cites to State v. Chapman (Mont. 1984), [209 Mont. 57,] 679 P.2d 1210, 41 St.Rep. 550, and Gilmore v. United States (5th Cir. 1958), 256 F.2d 565, to support his argument that the informant’s identity should have been revealed in this case. However these two cases are distinguishable from the instant case in that the informants in Chapman and Gilmore were active participants in the alleged crime and had done more than just inform or supply information.

Coates contends that the informant’s testimony would be relevant to his defense but fails to support that contention with anything more than conjecture or supposition. State v. McLeod (Mont. 1987), [227 Mont. 482,] 740 P.2d 672, 675, 44 St.Rep. 1251, 1255, (citing United States v. Kerris (11th Cir. 1984), 748 F.2d 610, 614, which states that mere conjecture or supposition is insufficient to warrant disclosure). There is no evidence that disclosure in this case outweighs “the public interest in protecting the flow of information” or that the informant’s testimony would be relevant to any issue in this case. Roviaro, 353 U.S. at 62, 77 S.Ct. at 628-29, 1 L.Ed.2d at 646; State v. Sykes (Mont. 1983), [_,_Mont._,] 663 P.2d 691, 694, 40 St.Rep. 690, 692; Rule 502, M.R.Evid. Coates has failed to substantiate his claim that his constitutional rights have been infringed by nondisclosure or that the informant would be exposed to no risk upon disclosure. Section 46-15-324(3)(a), (b), MCA; McLeod, 740 P.2d at 675. Accordingly, we hold that the District Court did not err by denying the motion for disclosure of informant’s identity. Affirmed.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. KENNETH DALE NETTLETON, Defendant and Appellant.
    No. 87-505.
    Submitted on Briefs June 22, 1988.
    Decided Aug. 22, 1988.
    760 P.2d 733.

      J. Mayo Ashley, Nicholas Jacques, Helena, for defendant and appellant.
    Mike Greely, Atty. Gen., Paul D. Johnson, Asst. Atty. Gen., Mike McGrath, Co. Atty., Carolyn Clemens, Deputy County Atty., Helena, for plaintiff and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Kenneth Dale Nettleton appeals from the judgment of the District Court of the First Judicial District, Lewis and Clark County, entered upon a jury verdict finding him guilty of deliberate homicide, a felony. We affirm.

Nettleton presents one issue for our review:

“Should two of the witnesses, both former spouses, have been allowed to testify regarding communications made to them during the marriage?”

On November 7, 1986, Nettleton was charged with the 1977 deliberate homicide of Gayla Sue Brisson. On March 18, 1987, Nettleton filed a motion to exclude the testimony of Candace Semenze and Magdelina DuMontier relating to statements made by Nettleton to the two women while married to them. According to Nettleton, Semenze was his common-law wife from June of 1975 until February of 1982, and he was married to DuMontier from July of 1983 until June of 1986. He asserted that his communications with the two women during marriage were privileged under Section 26-1-802, MCA.

After a hearing on the motion, the District Court determined that sufficient evidence had been introduced to show a marriage between Nettleton and DuMontier, and between Nettleton and Semenze. However, the court denied the motion to exclude the testimony of the two women based on exceptions to spousal privilege. Both women then testified at trial, and are characterized by both parties as important witnesses.

Semenze testified at length about Nettleton’s words and actions in her presence on the day of Brisson’s death and thereafter. Among other things, she testified to seeing a scarf in Nettleton’s car on the day after Brisson’s death that was very similar to the one she had seen Brisson wearing shortly before she was killed. She also testified about a chain of events following Brisson’s death, when Nettleton told her he had killed Brisson, showed her the body, and forced her to assist him in a “cover-up” of the crime. Brisson’s body was located under a small house trailer on the outskirts of Helena. The cover-up consisted of Nettleton and Semenze inspecting this trailer with an acquaintance of Nettleton’s, Chris Nunn, under the pretense of being interested in purchasing it. During the inspection, Nettleton “discovered” Brisson’s body.

Semenze’s testimony about these events is interspersed with repeated threats and abusive remarks by Nettleton:

“He was really scaring me; and he said if you tell that he would — if — he said if you tell anybody about this that he would kill me

“and we went back to — back to that little trailer; and I was scared; and he pulled up to it; and he was scaring me; and he said. ‘You get out of the “f — ing” car and pretend like you are interested in the trailer . . ”

Semenze further testified that although she and Nettleton were separated at the time of the killing, he forced her — again under threat of death — to move back in with him. While living with Nettleton, she was continually subjected to threats concerning what would happen to her or her baby should she ever disclose Nettleton’s connection to Brisson’s death. According to Semenze’s testimony, these threats were sometimes accompanied by physical violence:

“He was always picking on me and threatening me, shoving me around and telling me that he would take [the baby]; and he said, ‘If you run, you can run to Texas; and I will find you;’ and I just couldn’t sleep. I was scared that he would do something. I was scared he was going to do something to [the baby]. I just didn’t want to live with him but he made me live with him.”

Semenze also testified about an occasion shortly after Brisson’s death when she and Nettleton were riding in a pickup driven by Nettleton’s brother. Nettleton had his brother stop on a bridge so he could throw a knife into the creek “to wash the finger prints off.”

DuMontier likewise testified as to threats directed at her by Nettleton, as well as a “warning” from Nettleton’s brother. DuMontier, like Brisson, had red hair. She testified that after having an argument with Nettleton at a tavern, she was warned by Nettleton’s brother not to anger him because “Ken had already killed a redheaded girl.” DuMontier also testified that when she later asked Nettleton about his brother’s warning, he admitted to her that he had killed Brisson. She further testified that after she and Nettleton were divorced, he came to her house on at least one occasion and, according to DuMontier, “he got mad and started slapping me and just said that — called me Ga[y]la and said that I should be dead already because he had killed me years ago.”

On March 27, 1987, the jury returned its verdict finding Nettleton guilty of deliberate homicide. On August 2$, 1987, the District Court sentenced Nettleton to 60 years in the Montana State Prison and denied his motion for a new trial. This appeal followed.

Before proceeding to the main issue framed by Nettleton, we will dispose of a preliminary question raised by the State. The State’s argument to the District Court and its brief on appeal emphasize that Nettleton and Semenze were never married. According to the State, the alleged common-law marriage between the two did not have the four elements necessary under Montana common law: capability, agreement, cohabitation and reputation (citing Matter of Estate of Murnion (Mont. 1984), [212 Mont. 107,] 686 P.2d 893, 41 St.Rep. 1627, and other cases). Whether the relationship between Nettleton and Semenze fit the legal definition of common-law marriage was a question of fact for the District Court to decide. That decision must be upheld if there is substantial, credible evidence in the record to support it. Griffel v. Cove Ditch Co. (Mont. 1984), 207 Mont. 348, 675 P.2d 90, 41 St.Rep. 1.

The record shows that while Semenze denied the existence of the marriage in her testimony, she and Nettleton lived together, had a child, opened and used a joint checking account, and filed joint income tax returns for two consecutive years. The record also shows the filing of a joint petition for divorce signed by Semenze and Nettleton. This evidence provides a sufficient basis for the District Court’s decision that Nettleton and Semenze considered themselves married, and we will conduct our review under the assumption that the marriage existed.

The issue on review is thus the exceptions to spousal privilege adopted by the District Court and contested on appeal by Nettleton. Section 26-1-802, MCA, is Montana’s spousal privilege statute:

“Spousal Privilege. A husband cannot be examined for or against his wife without her consent or a wife for or against her husband without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communications made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other or to a criminal action or proceeding for a crime committed by one against the other.”

Nettleton argues that the District Court misapplied Section 26-1-802, MCA, and the exceptions found by the court to allow testimony by Semenze and DuMontier are contrary to existing case law. However, if the District Court’s ruling was correct, we will affirm it irrespective of the reasoning used to support it. Norwest Bank of Billings v. Murnion (Mont. 1984), 210 Mont. 417, 684 P.2d 1067, 1071, 41 St.Rep. 1132, 1136.

At the outset, we note the statute’s wording, which protects “communications made by one to the other during the marriage.” Given this wording, some of the testimony disputed by- Nettleton does not come within the privilege afforded by Section 26-1-802, MCA. Testimony by DuMontier concerning Nettleton’s actions and statements after the two were divorced is not at issue here, because those statements were not made during marriage. Nor is testimony by Semenze or DuMontier involving statements or actions by persons other than Nettleton at issue, because those were not communications by one spouse to the other.

The doctrine of spousal privilege has its roots in English common law. The original doctrine was based on the archaic principle that a husband and wife were a single legal entity, and therefore could not testify against one another. See 8 J. Wigmore, Wigmore on Evidence Section 2228, at 214-15 (J. McNaughten ed., 1961). The doctrine arrived in this country via the common law, being first recognized by the United States Supreme Court in Stein v. Bowman (1839), 38 U.S. 209, 10 L.Ed. 129. Most states have subsequently codified spousal privilege. The original form of Section 26-1-802, MCA, was enacted by the Montana legislature in 1867.

As the doctrine of spousal privilege has undergone changes over time, so has Montana’s statute. Section 26-1-802, MCA, has been amended or re-enacted 15 times. Changes made to spousal privilege by various courts and legislatures have drawn criticism from modern commentators, who say the somewhat piece-meal approach of carving out exceptions to the original rule has made the nation-wide body of law on spousal privilege confusing and sometimes contradictory. See McCormick on Evidence, Sections 78 et seq. (E. Cleary ed., 1984). The current form of Section 26-1-802, MCA, contains two of the more common exceptions found in other states: spouses can testify in a civil action by one against the other, or a criminal proceeding for a crime committed by one against the other.

In light of the criticism aimed at the sometimes confusing state of spousal privilege law, we will address the exceptions relied on by the District Court with an eye toward keeping what is still a fairly small body of law in Montana as uncluttered as possible. We are aided in this approach by the fact that much of Montana case law interpreting Section 26-1-802, MCA, and its predecessors has a common thread: in order to be protected by the privilege, proffered testimony must possess certain threshold characteristics of marital communications.

The District Court found one exception to spousal privilege for Semenze’s testimony as to what she had observed at the time of the homicide. We have previously held that exclusion of testimony through spousal privilege requires that the testimony deal with “communications only, that is utterances and not acts.” State v. Houchin (1967), 149 Mont. 503, 507, 428 P.2d 971, 973. See also United States v. Bolzer (9th Cir. 1977), 556 F.2d 948, 951 (reviewing a case from the U.S. District Court for the District of Montana, and holding the privilege applies only to “utterances or expressions intended by one spouse to convey a message to the other”). We have also held that spouses may testify about their feelings that result from privileged communications. Matter of J.H. (1982), 196 Mont. 482, 487, 640 P.2d 445, 448. At a minimum, then, the communication for which privilege is sought must be an utterance or other expression intended to convey a message to the other spouse. Testimony by Semenza or DuMontier as to observations of Nettleton’s actions; physical evidence such as Brisson’s body, her scarf or Nettleton’s knife; and feelings such as the fear induced by Nettleton’s threats and other behavior do not meet this minimum, and were therefore admissible.

This Court also recognizes that a spouse can waive spousal privilege by making the allegedly privileged communications in the presence of a third party. In re Marriage of Sarsfield (1983), 206 Mont. 397, 671 P.2d 595. The terms of our early discussion of this waiver show another required characteristic of privileged marital communications. In Thompson v. Steinkamp (1947), 120 Mont. 475, 187 P.2d 1018, we said,

“The court was right in overruling defendant’s objection to the testimony of Mrs. Thompson under the circumstances. Mr. Thompson did not regard the communications in question as confidential in any sense because, as above noted, the court was warranted in finding that he made the communications to others besides his wife.” Thompson, 187 P.2d at 1021 (emphasis added). Communications that pass the threshold of being utterances intended to convey a message must also be regarded by the communicating spouse as being at least somewhat confidential. Section 26-1-801, MCA, the statute that sets forth the policy behind Montana’s privilege statutes, reads as follows:

“Policy to protect confidentiality in certain relations. There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person cannot be examined as a witness in the cases enumerated in this part.”

The policy set forth in Section 26-1-801, MCA, applies to the spousal privilege in Section 26-1-802, MCA, and meshes with that found in the laws of most states:

“Most statutes expressly limit the privilege to ‘confidential communications.’ However, even where the words used are ‘any communication’ or simply ‘communications,’ the notion that the privilege is born of the ‘common law’ and the fact, that the prestatutory descriptions of the privilege had clearly based it upon the policy of protecting confidences, have actuated most courts to read into such statutes the requirement of confidentiality.”

McCormick Section 80, at 193, and authorities cited therein. Semenze’s testimony as to statements made by Nettleton in the presence of Chris Nunn while feigning interest in purchasing the house trailer, and Nettleton’s statement that he was throwing his knife into the creek in order to wash off fingerprints, was therefore proper. The presence of third parties indicates that Nettleton did not intend those statements to be confidential.

The District Court also found an exception to the privilege for statements made by Nettleton while beating or threatening DuMontier and Semenze. The court found this exception in this Court’s reasoning from Sarsfield. In Sarsfield, we began with the proposition that the purpose behind spousal privilege is to preserve the sanctity of the marriage and home, citing our decisions in J.H. and State v. Taylor (1973), 163 Mont. 106, 515 P.2d 695. We also said, “This privilege, however, is subject to the maxim that, when the reason for a rule ceases to exist, so then should the rule. See Section 1-3-201, MCA.” Sarsfield, 671 P.2d at 600. In Sarsfield and J.H., we held that acts of child abuse destroyed the sanctity of the marriage and home, and along with it the reason for having a spousal privilege. We therefore upheld district court decisions utilizing testimony of one spouse as to child abuse committed by the other.

Child abuse, however, presents a nearly unique problem. The child is a “third party” to the marital relationship insofar as the language of Section 26-1-802, MCA, is concerned, and yet is an integral part of that relationship. While those cases did not fit neatly into the scheme of the statute, strong policy considerations called for admission of testimony that might constitute the only available probative evidence. Child abuse has generated a large body of law in various jurisdictions, and has come to be regarded in a growing number of states a crime against the non-abusing spouse, and therefore an exception to the privilege. See 2 Wharton's Criminal Evidence Section 367, at 471-73, (C. Torcia ed., 1986), and authorities cited therein. In this case, we are concerned only with spouses. Rather than muddying the waters by attempting to apply the rule from Sarsfield and J.H. to the present situation, we will evaluate the District Court’s ruling in light of the threshold characteristics outlined above.

As stated above, the body of Montana law on the subject of spousal privilege is fairly small. However, states with statutes similar to Section 26-1-802, MCA, furnish guidance as to how the privilege applies in cases of cruelty or abuse by one spouse against the other. A trend has developed that is enlightening:

“[I]t has been held by most courts that a spouse’s testimony as to acts of cruelty or abuse is admissible on the ground that no confidential communication is involved, or that the information was not gained as a result of the marital relation.”

81 Am Jur 2d, Witnesses, Section 167. The spousal privilege statute in the state of New York reads in relevant part:

“A husband or wife shall not be required, or, without the consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage.”

CPLR Section 4502(b). In People v. Melski (1961), 10 N.Y.2d 78, 217 N.Y.S.2d 65, 176 N.E.2d 81, and more recently in People v. D'Amato (N.Y. Sup. Ct. 1980), 105 Misc.2d 1048, 430 N.Y.S.2d 521, the courts of New York have held that threats are not confidential marital communications protected by the privilege:

“The statutory privilege covers only those private exchanges which ‘would not have been made but for the absolute confidence in, and induced by, the marital relationship.’

“defendant’s confessed involvement in the fire at the Blackwell apartment did not come as a remorseful outpouring of guilt and anxiety to his wife; rather his admission to the arson was an inseparable part of his larger threat to burn down the homes of his wife’s closest relatives

“Such words of abuse and cruelty uttered with the intent to injure the other spouse fall outside of the privilege’s protection.” D'Amato, 430 N.Y.S.2d at 522, 524.

The spousal privilege statute in the state of Washington is even more similar to our own, and reads in relevant part:

“A husband shall not be examined for or against his wife, without the consent of the wife, nor a wife for or against her husband without the consent of the husband; nor can either during marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other during marriage.” RCWA 5.60.060(1) (Emphasis added.). In State v. Moxley (1971), 6 Wash. App. 153, 491 P.2d 1326, the Washington Court of Appeals held the defendant’s threat to kill his wife was not a communication induced by the marital relationship, and therefore was not privileged.

A full and workable definition of the threshold for communications between spouses deemed privileged would thus require two elements. First, the communications must be utterances or other expressions intended to convey a message from one spouse to the other. Second, the message must be intended by the communicating spouse to be confidential in that it was conveyed in reliance on the confidence of the marital relationship.

The testimony of both Semenze and DuMontier contains admissions by Nettleton that he had killed Brisson, as well as comments about the method he used. However, with only one exception, these statements were not, as the court in D’Amato put it, “remorseful outpouring[s] of guilt and anxiety” to the two women. They were instead an effort to terrify and intimidate the women into keeping silent about Brisson’s death, and in Semenze’s case, to induce her to cooperate in a cover-up and then live in Nettleton’s home under his control. Nettleton did not rely on the confidence of his marital relationships with Semenze and DuMontier. He relied on fear and intimidation. His threatening statements do not possess the threshold characteristics of confidential marital communications protected by spousal privilege.

A review of the trial transcript reveals that the vast majority of the testimony by DuMontier and Semenze was outside the scope of the protection of Section 26-1-802, MCA. Most of DuMontier’s testimony concerned communications with Nettleton when the two were not married. Indeed, DuMontier’s most damaging testimony concerned Nettleton’s statements calling her Gayla and telling her she should be dead because he had killed her years before. This incident occurred after Nettleton and DuMontier were divorced. Semenze’s testimony consisted largely of threats by Nettleton to induce her cooperation and silence, which do not merit spousal privilege. The one clear instance of testimony that should have been protected by the privilege — Nettleton’s admission to DuMontier in response to her question while they were married — simply restates the same information contained in the far greater number of non-privileged statements. The failure of the District Court to exclude this testimony was therefore harmless error. See State v. Shaw (1982), 199 Mont. 248, 648 P.2d 287.

We affirm the decision of the District Court.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES SHEEHY, HUNT and GULBRANDSON concur.