text:
    ROBERT FLESH, Plaintiff and Appellant, v. THE BOARD OF TRUSTEES OF JOINT SCHOOL DISTRICT #2, MINERAL AND MISSOULA COUNTIES and Pat Davies, Defendants and Respondents.
    No. 89-268.
    Submitted on Briefs Sept. 21, 1989.
    Decided Jan. 29, 1990.
    786 P.2d 4.

      Robert Flesh, Missoula, pro se.
    Michael W. Sehestedt, Deputy County Atty., Missoula, for defendants and respondents.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

The plaintiff, Robert Flesh brought this action alleging improper closure of various School Board meetings by the defendant School District. The District Court, Fourth Judicial District, Missoula County, entered summary judgment in favor of the School District for all meetings occurring more than 30 days prior to filing of the complaint and after a bench trial entered findings of fact, conclusions of law and order directing entry of judgment in favor of the defendant School District on closure of the School Board meeting of August 19, 1987.

Flesh raises a number of issues in his brief which we summarize as follows:

1. Whether the District Court properly granted summary judgment in favor of the School District for those meetings which occurred more than 30 days prior to the filing of the complaint.

2. Whether the District Court correctly held that the School Board properly closed the Board meeting of August 19, 1987.

3. Whether the School Board’s denial of Flesh’s request for an open meeting to discuss purely public questions was a form of prior restraint forbidden by the United States and Montana Constitutions.

As set out in his amended complaint, Flesh seeks relief for meetings the Board closed on November 18,1986, December 8,1986, July 6, 1987, August 10, 1987, and August 19, 1987. The relief sought for all meetings except the meeting of August 19, 1987, is a declaration that the meetings were improperly closed. As to the meeting of August 19, 1987, Flesh requests an order voiding any decision made during or resulting from the closed portion of the meeting. The minutes of the School Board meetings indicate that Flesh attended only the meetings of August 10 and 19, 1987.

On August 19, 1987, the Board of Trustees of Joint School District No. 2, Mineral and Missoula Counties, held a meeting of the School Board. On the agenda for the meeting was a grievance filed by Flesh, alleging that Assistant School Administrator Carl Dehne had maliciously made false statements for the purpose of injuring Flesh’s reputation in the community. The grievance requested a written and public apology and a severe reprimand for Dehne’s “irresponsible, malicious and political misconduct.” In addition, the grievance also requested an open hearing in front of the Board.

Flesh’s grievance stemmed from an article written by Dehne in the Alberton School Newsletter, in which Dehne was critical of Flesh’s accusation about Alberton School’s use of the “Scholastic Scope” magazine in certain classes.

At the grievance hearing, on August 19, 1987, the presiding officer asked Dehne if he wanted to waive his right to privacy. Dehne refused to waive his right to individual privacy and the presiding officer determined that the right of Dehne’s individual privacy outweighed the merits of public disclosure. Flesh requested to amend his grievance to delete all requests for disciplinary action at the time of the closure. The presiding officer denied Flesh’s attempt to amend his grievance. Subsequently, the Board closed the meeting over the objections of Flesh. Flesh, Dehne, Dehne’s attorney, and the superintendent remained in the closed meeting while Flesh presented his grievance.

After Flesh presented his grievance, the School Board closed the deliberations portion of the meeting. Flesh objected when the School Board excluded himself, Dehne, and Dehne’s attorney from the School Board’s deliberation. The Board took no action as a result of the grievance.

The District Court, on December 22, 1988, granted summary judgment in favor of the School District finding the complaint untimely under § 2-3-213, MCA, for those meetings which occurred prior to August 15, 1987. Furthermore, the court found that Flesh lacked standing to bring an action regarding the School Board meetings prior to August 15,1987, in that he had no personal interest in those meetings beyond the common interest of all citizens and taxpayers. Finally, the District Court contended that “since Mr. Flesh sought no relief for the meetings prior to August 15,1987, there is no justiciable controversy and any ruling by this Court on those meetings would merely be advisory in nature.”

Later, on January 20, 1989, after a bench trial, the District Court held in favor of the School District’s closure of the meeting of August 19, 1987. The District Court found Dehne’s right to privacy exceeded the public’s right to know, and thus the School Board properly closed the meeting.

I.

Whether the District Court properly granted summary judgment in favor of the School District for those meetings which occurred more than 30 days prior to the filing of the complaint.

The District Court in its opinion accompanying its order granting summary judgment in favor of the School District found:

“Since these meetings occurred more than thirty days prior to the filing of this action, this action is untimely under Section 2-3-213, MCA. Further with exception of the meeting of August 10, 1987, it is clear that Plaintiff lacks standing to bring an action regarding the meetings prior to August 15, 1987, in that he has no personal interest in those meetings beyond the common interest of all citizens and taxpayers. Chovanak v. Matthews, 120 Mont. 520, 188 P.2d 582 (1948). Finally since no relief is sought for the meetings prior to August 15, 1987, there is no justiciable controversy and any ruling by this Court on those meetings would merely be advisory in nature. Hardy v. Krutzfeldt, 206 Mont. 521, 672 P.2d 274 (1983). (Opinion and Order, December 22, 1980)”

While the District Court properly granted summary judgment to the School District, the court incorrectly relied on § 2-3-213, MCA, to find in favor of the School District. Section 2-3-213, MCA, establishes the remedy for improperly closed meetings and provides:

“Any decision made in violation of 2-3-203 may be declared void by a district court having jurisdiction. A suit to void any such decision must be commenced within 30 days of the decision.”

In the present case, Flesh, however, did not seek to “void” these meetings, but instead sought a declaratory judgment and a writ of mandamus. Flesh asked the court to declare those meetings in violation of Article II, § 9 of the Montana Constitution and § 2-3-203, MCA. In addition, he requested that the District Court issue a writ of mandamus, ordering the defendant to conduct all meetings of the Board of Trustees in accordance with Article II, § 9 of the Montana Constitution and § 2-3-203, MCA. Therefore, the District Court incorrectly relied on § 2-3-313, MCA, because the plaintiff did not seek to “void” the meetings.

Even though § 2-3-213, MCA, does not apply to the meetings before August 15, this Court affirms the District Court’s grant of summary judgment. The District Court was correct in holding that Flesh’s claim must fail both for lack of justiciable controversy and for lack of standing.

In Hardy v. Krutzfeldt (1983), 206 Mont. 521, 524, 672 P.2d 274, 275, this Court stated:

“It is true that the purpose of the Uniform Declaratory Judgment Act is remedial, to ‘settle and to afford relief from uncertainty and insecurity with respect to rights, status, and to the legal relations’; section 27-8-102, MCA. It is also true that the powers vested by the statute in the courts to render declaratory judgments include ‘power to declare rights, status and other legal relations whether or not further relief is or could be claimed.’ Section 27-8-201, MCA.
“Nevertheless, this Court has on occasion refused to entertain a declaratory judgment action on the ground that no controversy is pending which the judgment would affect, and this Court attempts to avoid rendering advisory opinion.” [Emphasis added.]

In the present case, Flesh seeks no relief for the meetings prior to August 15, 1987. He is simply requesting an advisory opinion which will have no impact on the present and future rights and duties of the parties. There is no justiciable controversy, and therefore Flesh cannot maintain a declaratory judgment action based on meetings prior to August 15, 1987.

Flesh also argues that affirming the District Court’s order would encourage flagrant violations of the open meeting laws. He contends that closed meetings discourage public participation, and reward closed-door, backroom dealing. This Court disapproves of clandestine meetings of public bodies which violate the spirit and the letter of the open meeting laws, which is not the case here. Board of Trustees, Huntley Project School District No. 24, Worden v. Board of County Commissioners of Yellowstone County (1980), 186 Mont. 148, 156, 606 P.2d 1069, 1073.

II.

Whether the District Court correctly found that the School Board properly closed the Board meeting of August 19, 1987.

Both the public right to know, from which the requirement that the meetings of public bodies be open to the public flows, and the right of privacy, which justifies the closure of a public meeting, are firmly established in the Montana Constitution. The Montana Constitution in Article II, § 9, defines the right of the public to know:

“Right to know. No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclose.”

Furthermore, Article II, § 10 defines the right of privacy:

“Right of privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”

The constitutional provisions are implemented by the Open Meeting Laws. Section 2-3-203, MCA, provides in pertinent part:

“(1) All meetings of public or governmental bodies, boards, bureaus, commissions, agencies of the state, or any political subdivision of the state or organizations or agencies supported in whole or in part by public funds or expending public funds must be open to the public.
“(2) Provided, however, the presiding officer of any meeting may close the meeting during the time the discussion relates to a matter of individual privacy and then if and only if the presiding officer determines that the demands of individual privacy clearly exceed the merits of public disclosure. The right of individual privacy may be waived by the individual about whom the discussion pertains and, if that event, the meeting shall be open.

Flesh contends that Dehne had no reasonable expectation of privacy in the subject matter presented at the grievance meeting, and thus, the District Court erred in holding that the School District properly closed the meeting. Flesh strongly urges this Court to enforce the public’s right to know. In contrast, the School District argues the presiding officer, properly closed the meeting when Dehne refused to waive his right of privacy.

In The Missoulian v. Board of Regents of Higher Education (1984), 207 Mont. 513, 529, 675 P.2d 962, 971, this Court adopted a balancing test to resolve the competing and conflicting right-to-know and right-to-privacy provisions of the Montana Constitution: “However, the right to know is not absolute. The more specific closure standard of the constitutional and statutory provisions requires this Court to balance the competing constitutional interests in the context of the facts of each case, to determine whether the demands of individual privacy clearly exceed the merits of public disclosure. Under this standard, the right to know may outweigh the right of individual privacy, depending on the facts.”

In The Missoulian, the Board of Regents was required to balance the public’s right to know against the individual’s right of privacy with respect to employment evaluations. There the right of individual privacy was held to be paramount. Similarly, the presiding officer of the School Board of Trustees, in closing the grievance meeting to the public, balanced the interest of public’s right to participate in the School Board meeting, and Dehne’s right of privacy. The presiding officer determined the grievance meeting, due to Flesh’s request for disciplinary action, might involve a review of Dehne’s employment record. This Court has previously held employment records are subject to the state Constitutional right to privacy. Montana Human Rights Division v. City of Billings (1982), 199 Mont. 434, 442, 649 P.2d 1283, 1287-1288.

Whenever the Court must determine whether a privacy interest is protected under the State Constitution, we apply a two-part test: (1) whether the person involved had a subjective or actual expectation of privacy; and, (2) .whether society is willing to recognize that expectation as reasonable. Great Falls Tribune v. Judicial D. Court (Mont. 1989), 777 P.2d 345, 350; The Missoulian v. Board of Regents of Higher Education (1984), 207 Mont. 513, 522, 675 P.2d 962, 967; Montana Human Rights Division v. City of Billings (1982), 199 Mont. 434, 442, 649 P.2d 1283, 1287.

In this case the first part of the test, the subjective or actual expectation of privacy, is clearly met. Flesh’s grievance specifically requested “Carl Dehne to be severely reprimanded by the Board for his irresponsible, malicious, and political misconduct.” Dehne clearly had an expectation that when his employer, the School Board, considered the complaint against him it would do so in a closed session.

The second prong of the test is also met because society is willing to recognize a privacy interest in a public employer’s consideration of allegations involving an employee’s character, integrity, honesty, and personality. The Missoulian v. Board of Regents of Higher Education (1984), 207 Mont. 513, 675 P.2d 962; Sonstelie v. Board of Trustee (1983), 202 Mont. 414, 658 P.2d 413; Montana Human Rights Division v. City of Billings (1982), 199 Mont. 434, 649 P.2d 1283. This Court in Sonstelie, upheld the closure of a meeting when the meeting involved matters of a “personal nature”:

“Appellant finally argues that the special meeting was illegally closed in violation of the Open Meeting Act. This contention is without merit. The minutes of the meeting reflect that the trustees went into executive session ‘to discuss and review teacher contracts for the 1981-82 school year.’ When asked on direct examination why the Board went into executive session, chairman Pine replied that ‘there was a lot of things that could come up of a personal nature and privacy of the matters could get really touchy and would really outweigh the public need to hear what was said.’ The Open Meeting Act allows a presiding officer to close the meeting ‘during the time the discussion relates to a matter of individual privacy’ where the officer has determined that ‘the demands of individual privacy clearly exceed the merits of public disclosure.’ That right of individual privacy may be waived ‘by the individual about whom the discussion pertains’ and the meeting must then remain open. Section 2-3-203(2), MCA.”

Sonstelie, 658 P.2d at 417.

Flesh argues society would not recognize a privacy interest in a public agency’s published, and widely distributed newsletter article, or in questions pertaining to its truth or falsity. Furthermore, he contends the author, Dehne, could not have reasonably expected to acquire any special privacy rights by writing and publishing the article. Flesh is correct in his assertions that Dehne has no privacy interest in the newsletter. However, Flesh’s grievance complaint not only called for a review of the newsletter, but also a request for disciplinary action against Dehne. This request for disciplinary action would necessitate a review of Dehne’s personnel record. Clearly Dehne has the right to keep his employment file private and away from public scrutiny.

The public’s right to know is not absolute but must be balanced against the competing right to individual privacy. In this case there is no showing of any public interest to be served by a public meeting but a substantial showing of a legitimate employee privacy interest to be protected by closing the meeting.

Flesh contends the presiding officer failed to follow the proper procedure in closing the meeting to the public. We find little merit in plaintiffs contentions. Section 2-3-203(3), MCA, provides that the meeting may be closed when “. . . the presiding officer determines that the demands of individual privacy outweighs the merits of public disclosure.” The minutes of the August 19, 1987 meeting reflect the presiding officer properly followed the statute:

“At the beginning of the personnel hearing the chairwoman asked Mr. Dehne if he waived his right to privacy. He did not waive it. Mr. Flesh objected to the hearing being held in executive session. The chairwoman after determining that in this personnel matter, the individual’s right to privacy exceeded the public’s right to know called for executive session. After the executive session, the chairwoman responded to Mr. Flesh’s grievance items. No board action was taken.”

Clearly the presiding officer properly followed the procedure set forth in § 2-3-203, MCA, and the meeting was properly closed to protect Dehne’s individual privacy.

Finally, Flesh argues that the School Board improperly closed the deliberations portion of the meeting. Furthermore, Flesh contends the presiding officer failed to give any reason for the closing of the deliberations to the public. While the presiding officer failed to state the reason for the closure of the deliberation portion of the meeting, the record implicitly shows the deliberations, like the grievance portion of the meeting, were closed to protect Dehne’s privacy interest.

III.

Whether the School Board’s denial of the plaintiff’s right to an open meeting to discuss purely public questions was a form of prior restraint forbidden by the United States and Montana Constitution.

Flesh argues that the closure of the grievance hearing constituted a prior restraint on his First Amendment right of Free Speech. We find no merit in this argument. The Record reveals the School Board did not prevent Flesh from saying anything he wanted to say about Dehne or the School. Rather what the record reflects is that Flesh requested and obtained a hearing before the Board on his allegations that Dehne had acted maliciously and dishonestly and on his request that Dehne be reprimanded and a public apology made.

The First Amendment prohibition on prior restraint does not require the School Board to conduct an open hearing on allegations seeking disciplinary action against a school administrator. Flesh’s own testimony reveals that this closure did not restrain him from speaking to the newspapers, television stations, or other segments of the public.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE SHEEHY

license: Public Domain

text:
    JAMES E. EDWARDS, Plaintiff and Respondent, v. ROY E. SEVERIN, Defendant and Appellant.
    No. 89-118.
    Submitted on Briefs Oct. 20, 1989.
    Decided Jan. 29, 1990.
    785 P.2d 1022.

      James A. Patten, Billings, for defendant and appellant.
    Kenneth D. Tolliver, Billings, for plaintiff and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Plaintiff James Edwards brought suit in the District Court, Thirteenth Judicial District, Yellowstone County, seeking compensatory and punitive damages against Roy Severin for wrongfully denying Edwards and his successor access to Edward’s property. In addition, Edwards sought damages for the wrongful logging of lumber on state land leased by Edwards. The District Court found that Severin acted oppressively and maliciously in denying Edwards access, that Severin was guilty of trespass, and awarded Edwards $53,375 in damages. From that judgment, Severin appeals. We affirm in part and reverse in part.

The issues raised by Severin are:

1. Whether Severin has a valid claim to Minnie Island by accretion or otherwise.

2. Whether the District Court erred in ruling Edwards has a prescriptive easement to Minnie Island.

3. Whether the District Court erred in allowing Edwards, as a lessee, damages for removal of timber from Minnie Island.

The property in question is land adjacent to the Yellowstone River near Laurel, Montana, known as Minnie Island situated between the lands of Edwards and Severin. The river channel in this area has undergone several changes since Montana statehood. Ice jams have caused the main channel of the Yellowstone to shift several times. In the past, the Yellowstone had flowed between the properties of Severin and Edwards. Indeed, the old channels seasonally fill with water to this day, restricting access to Edwards’ property.

It is clear from the record that Minnie Island began to form in the channel between the parties’ lands at some time between 1889 and 1916, when it was first noted by surveyors.

The process by which Minnie Island was formed over the years precludes Severin’s claim of ownership by accretion. Under our statutory law, whether a stream is navigable or non-navigable, land formed by imperceptible degrees upon the bank of the stream belongs to the owner of the bank, subject to any existing right-of-way over the bank. Section 70-18-201, MCA. If a stream is navigable, and islands and accumulation of land are formed in the bed of the stream, title to the island or accumulation belongs to the State, where there is no title or prescription to the contrary. Section 70-18-203, MCA. Under the facts of this case, Minnie Island formed in the bed of the Yellowstone River, a navigable stream. Therefore, title to Minnie Island vested in the State, since there is no title or prescription to the contrary. The State has asserted its title to the island by leasing it to Edwards. Severin recognized the State’s title by offering to purchase the island from the State.

Further, under our statutory law, if an island forms in a non-navigable stream, it belongs to the owner of the shore where the island forms. Section 70-18-204, MCA. Severin maintains there is no evidence to support the District Court’s conclusion that the Yellowstone River is navigable at the place here involved. He further points to Bode v. Rollwitz, et al. (1921), 60 Mont. 481, 199 P. 688, where this Court sustained a decision that the Yellowstone was not navigable at a point shortly downstream from the place here involved. However, as this Court said in Montana Coalition for Stream Access v. Curran (1984), 210 Mont. 38, 682 P.2d 163, 166, citing The Daniel Ball (1870), 77 U.S. (10 Wall) 557, 19 L.Ed. 999, the capability of use by the public for purposes of transportation or commerce affords the true criterion of navigability of a stream. In this case there was unrefuted testimony that the river was large enough to float logs, and it is used extensively for organized recreational river floats involving many boats and rafts. The District Court properly considered the river was navigable at this point.

The court correctly determined that Minnie Island was not formed by accretion, and therefore not subject to Severin’s claim of ownership. It is an island, albeit one no longer surrounded entirely by water. There are no valid adverse claims to defeat the State’s title. Thus, Severin’s contention of ownership must fail.

Severin’s second issue regarding prescriptive easements to Minnie Island incorrectly assumes the court granted Edwards prescriptive rights to Minnie Island. The District Court’s conclusion of law No. 5 states only that Edwards has a prescriptive right to cross the backwater channel in order to reach Minnie Island, which Edwards leased from the State. This sets the stage for damages against Severin for wrongfully refusing Edwards and his successors access to the leased land and Edwards’ adjoining property.

The third issue is whether the court erred in granting Edwards damages for removal of timber from Minnie Island by Severin and his successor. Severin maintains that the issue of damages for taking timber is raised for the first time on appeal and may not be considered by this Court. However, the pleadings in this cause sought no such damages. The damage item for timber was clearly outside the issues before the District Court. This Court must address the propriety of such damages.

It is clear that the state of Montana is the owner of Minnie Island. Edwards is a lessee, whose lease grants him grazing rights. No mention is made in the lease as to timber rights. A tenant for years is not afforded timber rights by reason of his tenancy. Section 70-16-104, MCA, allows a tenant to harvest only the “annual products of the soil . . .” Timber rights are not included in this definition.

Edwards maintains that as between him and Severin, the damages for timber taking should stand since Edwards was rightfully in possession. Moreover, Edwards suggests that if such damages are collected by Edwards from Severin, Edwards may be required to pay such monies to the State as the true owner of the property. Edwards, however, has no standing to collect damages for the State. If the taking of the timber by Severin was by trespass and willful or malicious, the State, as true owner has a cause of action against Severin for treble damages. Section 70-16-107, MCA. The State is the only real party in interest as to damages arising out of the taking of timber. We therefore reverse the award of $27,500 for the value of the timber.

In summary, we affirm the damages of $25,875 resulting from Severin’s denying Edwards and his successors access, and we reverse the $27,500 award for trespass for taking timber.

Affirmed in part and reversed in part. Each party bears his own costs on appeal.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and McDonough concur.


text:
    In Re The Marriage of WILLIAM LUNDVALL, Petitioner and Respondent, and PAULINE LUNDVALL, Respondent and Appellant.
    No. 89-363.
    Submitted on Briefs Nov. 2, 1989.
    Decided Jan. 29, 1990.
    786 P.2d 10.

      Gary A. Ryder, Forsyth, for respondent and appellant.
    John S. Forsythe, Forsyth, for petitioner and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Pauline Lundvall appeals from a judgment of the District Court, Sixteenth Judicial District, Rosebud County, in a marital dissolution case, which judgment denied Pauline Lundvall maintenance and attorney fees. Finding error in the basic facts on which the District Court founded its judgment, we reverse and remand to the District Court for further consideration of those items.

In 1982, Pauline Judd, recently widowed, responded to a personal advertisement placed by William Lundvall in a national tabloid magazine. She moved to Colstrip, Montana, in March, 1982, and became Mrs. William Lundvall on December 12,1982. The parties separated on November 11, 1987.

At the time of the dissolution, the husband was employed as a heavy equipment operator having a monthly net income of $1,640.00. The wife was employed part-time as a nurses’ aide and earned a monthly income of $316.68. The District Court found that William had monthly living expenses of $711.27, plus a monthly debt obligation of $867.42. In the case of the wife, the court found her monthly living expenses to be $785.00. To her monthly earnings of $316.68, the District Court also added payments which she might receive from the sale of her home in Vermont in the amount of $200.00 per month. The District Court also found that Pauline had health problems which prohibited her from working full time.

The District Court distributed the marital property of the parties as follows:

To the husband:
Wicks mobile home $7,000.00
with its indebtedness of 4,600.00 $2,400.00
Lot in Colstrip 9,000.00
with its indebtedness of 1,700.00 7.300.00
1982 Buick 3,100.00
with its indebtedness of 2,100.00 1,000.00
IRA Colstrip Bank 2,000.00 2,000.00
1974 Chevrolet pickup 700.00 700.00
U.S. Bond 450.00 450.00
Valley Credit Union 2,500.00 2.500.00
Rifle 300.00 300.00
IRA Valley Credit Union 1,600.00 1.600.00
Tools and garden equip. 500.00 500.00
Total $18,700.00
To the wife:
1982 Conversion Van $5,000.00
without a debt 5.000.00
IRA 1,750.00 1.750.00
Rocky Judd’s mobile home 2,500.00 2.500.00
Her equity in the Vt. home 5,000.00 5.000.00
10 monthly payment of temporary support @ $400.00 4,000.00 4.000.00
Total $18,250.00

The item above of $4,000.00 which the District Court considered an asset assignable to the wife was 10 monthly payments of temporary support ordered by the court to be paid by William to Pauline. The eifect of the District Court order is to charge Pauline the full amount of all the maintenance payments that had been made to her under a temporary maintenance order of the District Court issued in connection with the marital dissolution. Obviously, the District Court erred in considering the total amount of maintenance payments to be a marital asset.

Considering Pauline’s ability to work, the District Court found that she had health problems which prohibited her from working full time. The court concluded, however, that “these health problems are the result of the aging process and were not caused by this marriage.” The District Court in its conclusions of law stated that the husband “is not financially responsible for respondent’s health condition caused by aging in a marriage of this duration. “

The factors on which a district court may decide whether maintenance should be awarded to a spouse are set forth in § 40- 4-203, MCA. Included in those factors which the District Court may consider are the financial resources of the party seeking maintenance; the ability of that spouse to meet his or her needs independently; the age and physical and emotional condition of the spouse seeking the maintenance; the duration of the marriage; and the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. An award or denial of maintenance must be made in accordance with the factors set forth in this statute. Laster v. Laster (1982), 197 Mont. 470, 643 P.2d 597; Grenfell v. Grenfell (1979), 182 Mont. 229, 596 P.2d 205.

With respect to whether the spouse that seeks maintenance will receive sufficient property to provide for the spouse’s needs (§ 40-4-203(l)(a), MCA), the term “sufficient property” means income-producing, not income-consuming. Laster v. Laster, supra. Moreover, the true net worth of the marital estate must be accurately determined in accordance with the requirement of § 40-4-202, MCA, before the issues of equitable apportionment and maintenance can be resolved. Marriage of Peterson (1981), 195 Mont. 157, 636 P.2d 821.

The testimony of the wife with respect to the Vermont home was that the sales contract was in default and that the Vermont real estate taxes had not been paid on the property. The income-producing effect of the remaining marital property awarded to the wife is negligible. The “asset” of temporary maintenance already received by the wife is in its nature non-income producing.

The comment of the District Court that it had “yet to see a successful mail order marriage” and its conclusion that the husband was not financially responsible for the wife’s health condition caused by aging in a marriage of five year duration shows that the District Court placed undue emphasis on these factors. In Marriage of Forney (1986), 221 Mont. 63, 716 P.2d 635, where the parties had separated less than a year after the marriage, we affirmed the District Court which had recognized appropriate standards for awarding maintenance, including the fact that the wife lacked sufficient property to provide for her reasonable needs, and that she was unable to support herself through appropriate employment, as well as the fact that the husband had the financial resources to pay maintenance and still meet his own needs.

While the duration of a marriage is a factor to be considered in connection with the award of maintenance, § 40-4-203, MCA, it is not an overriding factor so as to preclude consideration by the District Court of other equitable reasons set forth in the statute for the award of maintenance.

Accordingly, we reverse and remand this cause to the District Court for further consideration on the issue of maintenance. The total amount of temporary maintenance received by the wife from the husband is not to be considered an asset in that determination. The fact that the wife’s health condition is the result of the aging process, if this be true, is not a precluding factor in whether the wife’s health condition prevents her from engaging in remunerative work. On remand, the District Court is free to consider all relative factors, including those set out in § 40-4-203, MCA, in determining whether Pauline is entitled to maintenance.

With respect to attorney fees, the award or denial of such attorney fees to the wife may depend on what is further found by the District Court relating to maintenance. It is another item to be reconsidered by the District Court on remand.

Reversed and remanded.

JUSTICES HARRISON, HUNT, WEBER and McDONOUGH concur.


author: JUSTICE BARZ

text:
    AMERICAN FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff and Appellant, v. DENNIS SCHENK; Phyllis Diehl; John Jepson; Townsend Electric, Inc., United States Department of Treasury, Internal Revenue Service; State of Montana, Department of Labor and Industry, Unemployment Insurance Division; and State of Montana, Department of Revenue, Defendants and Respondents.
    No. 89-408.
    Submitted Jan. 11, 1990.
    Decided Jan. 30, 1990.
    785 P.2d 1024.
    Jock O. Anderson argued, Gough, Shanahan, Johnson & Waterman, Helena, for plaintiff and appellant.
    John T. Flynn argued, Townsend, R. Bruce McGinnis, Dept, of Revenue, David Scott, Dept, of Labor & Industry, Kris A. McLean, Asst. U.S. Atty., Charles A. Graveley, Helena, for defendants and respondents.
   JUSTICE BARZ

delivered the Opinion of the Court.

American Federal Savings and Loan Association appeals from an order of the District Court for the First Judicial District, Broadwater County, granting summary judgment in favor of Townsend Electric, Inc. We reverse and remand.

Dennis Schenk borrowed $80,000 from appellant American Federal Savings and Loan to purchase the Commercial Bar in Townsend. Schenk executed a promissory note secured by a deed of trust recorded February 28, 1984, in favor of appellant. Subsequent to its completion of remodeling and electrical work on the Commercial Bar, respondent Townsend Electric perfected a mechanic’s lien on April 26,1985. None of the proceeds of appellant’s loan were used as payment for respondent’s improvements.

Appellant filed its complaint on November 27, 1987, seeking, among other things, foreclosure of the deed of trust. Respondent asserted as an affirmative defense the priority of its mechanic’s lien. Both appellant and respondent moved for summary judgment and after hearing on May 19, 1989, the District Court entered judgment in favor of respondent on June 22, 1989. Appellant raises the following dispositive issue on appeal: Did the District Court erroneously conclude that respondent’s mechanic’s lien has priority over appellant’s prior recorded deed of trust?

Appellant contends that mechanic’s liens have priority over mortgages only when improvements are severable from real property citing as authority for its contention Interstate Lumber Co. v. Rider (1933), 93 Mont. 489, 19 P.2d 644 and § 71-3-502(4), MCA (1985). Rider borrowed funds with which to renovate a building located on real property owned by him. Interstate Lumber, 19 P.2d at 645. First and second mortgages secured the loans. Interstate Lumber, 19 P.2d at 645. Interstate Lumber, from whom Rider obtained building supplies, attempted to foreclose on its materialman’s lien when Rider failed to pay any part of his bill. Interstate Lumber, 19 P.2d at 645.

Although the materialman’s lien statute was broadly interpreted and this Court found the remedy thereby provided equitable in nature, it held that the lien gave priority to the materialman only so far as the structure was concerned and did not extend to the land. Interstate Lumber, 19 P.2d at 646-47. Furthermore, unless the improvements were severable without “material damage” to the existing structure, the prior recorded mortgage still prevailed over the materialman’s lien. Interstate Lumber, 19 P.2d at 647.

“The recorded mortgage gives to the materialman constructive notice of the existence of the lien, and he deals with the owner with knowledge that the house, as well as the land, is pledged as security for the payment of the mortgage debt.”

Interstate Lumber, 19 P.2d at 647. The arguments propounded by the parties in this case presume the nonseverability of respondent’s improvements.

Both appellant and respondent cite a trio of cases in support of their arguments. The first of the so called “trilogy” is Beck v. Hanson (1979), 180 Mont. 82, 589 P.2d 141. In Beck, the landowner obtained a loan secured by two trust indentures, the proceeds of which were to be used to construct duplexes on a previously unimproved lot. Beck, 589 P.2d at 142. Neither the plaintiffs, who performed masonry work on the lot, nor the lender nor any other materialmen were paid. Beck, 589 P.2d at 142. In the subsequent foreclosure action, the lender moved for summary judgment claiming the previously recorded trust indentures had priority while the materialmen sought to enforce their mechanic’s liens. Beck, 589 P.2d at 142. This Court affirmed the District Court’s ruling that the mechanic’s liens were “a prior secured interest in the real property ... to the extent that material and labor were furnished by the [materialmen] for the construction of the improvements upon the property.” Beck, 589 P.2d at 142. Appellant contends Beck does not alter the rule set forth in Interstate Lumber: That a mechanic’s lien has priority only to the extent of severable improvements.

Respondent on the other hand, contends that Beck stands for the proposition that a mechanic’s lien takes priority over all the purchaser’s rights at a trust indenture foreclosure sale thus giving the mechanic’s lien priority over all encumbrances. Additionally, respondent argues a mechanic’s lien is prior in right not only as to the severable improvements, but also as to concurrently erected structures and the owners’ interest in the real property itself.

Balancing the competing policies behind the Small Tract Financing Act and the mechanic’s lien statutes, this Court found the beneficiary of the prior recorded trust indenture better equipped than the material supplier to protect its rights. Beck, 589 P.2d at 144. This Court upheld “the District Court’s judgment that a mechanic’s lien for improvements constructed after the grant of a trust indenture has priority over the interest of a purchaser at trustee’s foreclosure sale.” Beck, 589 P.2d at 144.

The second case in the trilogy is Home Interiors, Inc. v. Hendrickson (1984), 214 Mont. 194, 692 P.2d 1229. Buyers in that case, who customarily resold homes they had remodeled and improved, bought a home with proceeds of a loan secured by a trust indenture. Home Interiors, 692 P.2d at 1230. Subsequently, buyers engaged two materialmen to install carpet, linoleum and sub-flooring. Home Interiors, 692 P.2d at 1230. Buyers paid a minimal amount to one supplier, nothing to the other and defaulted on the loan one year later. Home Interiors, 692 P.2d at 1230. The District Court held the mechanic’s liens lacked priority over the trust indenture and were thus eliminated by the foreclosure sale. Home Interiors, 692 P.2d at 1231. Reversing the lower court ruling, this Court found no reason to distinguish Home Interiors from Beck and:

“[Therefore [held] the party having the greatest ability to protect its interests has the burden of exercising due care to prevent overreaching by an interested party. In this case [lender] was in the best position to protect against non-payment by the landowner by either withholding funds to the extent of the contemplated improvements or by requiring the landowner to obtain lien waivers from the mechanics. [It found] no merit in [lender’s] argument that section 71-3-502(4) should be construed strictly to pivot on the words ‘upon the land.’ Such a narrow interpretation would defeat the purpose of the statute. [The Court held] appellants’ liens [took] priority over respondents’ trust indenture.”

Home Interiors, 692 P.2d at 1232.

Where the plaintiff-materialman filed suit to foreclose its mechanic’s lien naming the lender as defendant by virtue of its mortgage on improved real property, the Court upheld Home Interiors and rejected the rule that only mechanic’s liens filed as to new structures have priority over other prior encumbrances. Tri-County Plumbing & Heating, Inc. v. Levee Restorations, Inc. (1986), 221 Mont. 403, 417-18, 720 P.2d 247, 256. Appellant advances the same argument as did lender in Tri-County. Respondent contends TriCounty affords priority to mechanic’s liens regardless of the nature of the work performed on the real property.

We find the instant case readily distinguishable from the trio of cases set forth above. Appellant and Schenk entered into the loan agreement almost a year prior to the commencement of improve-merits to the Commercial Bar. Appellant lacked any resource with which to determine that Schenk would commence a remodeling and improvement project at a date far removed from that on which it made the loan. Appellant could not withhold funds intended for construction as Schenk used the loan proceeds to purchase, not remodel, the Commercial Bar. Schenk was under no obligation to notify appellant of the remodeling and related expenditures. Even had Schenk given notice, appellant had no legal means available to further secure its lien position.

In Beck, Home Interiors, and Tri-County the lenders knew or had reason to believe the borrowers would incur additional obligations in improving the property encumbered when making the loans. In each case the Court found the party with the least ability to protect its financial interest should have priority over other prior recorded liens. In the case at hand, respondent could easily have determined that appellant had a prior recorded security interest. The result in the instant case is consistent with § 71-3-542, MCA, the current priority statute. We therefore reverse the order of the District Court granting respondent’s motion for summary judgment and remand for entry of judgment in appellant’s favor.

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


author: JUSTICE SHEEHY JUSTICE HUNT,

text:
    HI-LINE SPORTSMEN CLUB, Petitioner and Respondent, v. MILK RIVER IRRIGATION DISTRICTS, City of Gillette, Wyoming, et al., Respondents and Appellants.
    No. 88-517.
    Submitted on Briefs Oct. 19, 1989.
    Decided Feb. 1, 1990.
    786 P.2d 13.

      Matthew W. Knierim, Gallagher, Archambeault & Knierim, Glasgow and Douglas E. Davidson, Berlack, Israels & Lieberman, New York City, for Milk River Irr. Dist.
    Roger Tippy argued, Helena, for City of Gillette.
    Donald R. Marble argued, Marble Law Firm, Chester, for petitioner and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

The District Court, First Judicial District, Lewis and Clark County, sitting in judicial review of a contested case under the Administrative Procedure Act (§ 2-4-702, MCA) reversed the final decision of the State Board of Health and Environmental Sciences (Board) which had granted “401 certifications” to the Milk River Irrigation Districts and to the City of Gillette, Wyoming. The Districts and Gillette appealed the reversal to this Court. On consideration, we affirm the action of the District Court in reversing the order of the Board.

Section 401 of the Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C., Section 1341) provides for a certification process to be conducted by the affected state where prospective hydroelectric projects are reviewed for compliance with the state’s water quality statutes and regulations. Whatever conditions the states may place on the applicant through the certification procedure become part of the permit issued by the Federal Energy Regulatory Commission (FERC).

In Montana, the Department of Health and Environmental Sciences has been delegated the responsibility to conduct the 401 certification process. Section 75-5-401(2), MCA. Malta Irrigation Dist. v. Board of Health & Environ. (1986), 224 Mont. 376, 729 P.2d 1323.

On June 14, 1982, Montana Renewable Resources (MRR) applied to the Department of Health and Environmental Sciences (Department) for 401 certification as part of the process for obtaining a permit from FERC to construct a hydroelectric generating facility at the Tiber Dam on the Marias River near Chester, Montana. The Milk River Irrigation Districts (Districts) filed their application on January 21, 1983, and the City of Gillette, Wyoming, (Gillette) submitted its application on February 7, 1983.

On May 14, 1984, the Department issued 401 certifications to MRR, the Districts, and Gillette. In October, 1984, MRR, by letter requested that the Department reconsider its decision to certify both the Districts and Gillette. The Department refused to reconsider. In February, 1985, MRR petitioned the Board to overturn the Department’s certifications. In April, 1985, High-Line Sportsmen Club (Sportsmen) moved to intervene in the Board proceedings. On January 16 and 17, 1986, the Board conducted a contested case hearing on the 401 certification issued to the Districts and Gillette. MRR and the Sportsmen argued before the Board that the water temperature conditions contained in the certifications issued to the Districts and to Gillette violated the Board’s regulations for the Marias River by allowing an increase in downstream water temperature which would endanger the existing rainbow trout fishery. The Board heard additional oral arguments on May 16, June 4, September 26, and November 14, 1986. On November 26, 1986, the Board issued findings of fact and conclusions of law and order. The Board concluded, in part, that the 401 certifications previously issued to Gillette and the Districts by the Department were to be amended to delete authorization to use auxiliary outlet level water for hydro-power production at Tiber Dam.

These certifications were amended to include the following requirement:

“All water used for hydropower production is withdrawn from a point in the reservoir at least 85 feet below the elevation of the bottom of the present auxiliary outlet of Tiber Dam, or such lesser depth as is physically required by the configuration of the reservoir bottom, but in no event less than 60 feet below the elevation of the bottom of the auxiliary outlet of the Tiber Dam.”

It is this portion of the Board’s order which Sportsmen contested, and succeeded in reversing on judicial review in the District Court. The Districts and Gillette appealed the District Court’s decision to this Court.

The Marias River was named by Meriwether Lewis of the Lewis and Clark Expedition in honor of his cousin Maria Wood. Tiber Dam was finished in 1956, named for the small town nearby on the Great Northern Railway siding. The Dam backs up Lake Elwell, named in honor of District Judge Charles B. Elwell who retired from the District Court bench in 1967.

The Dam as built had not provided for the generation of hydroelectric power though the Dam’s basic construction included structures which would allow for installation of generation equipment. The three entities above named became interested in hydroelectric development and each sought mutually exclusive permits from PERC to install hydroelectric plants in the Dam. Federal law requires before FERC can grant a permit, an applicant must have a 401 certification from the state which insures that state water quality standards are not violated by the proposed project. 33 U.S.C. § 1341.

It is the public policy of this state, under § 75-5-101, MCA, to conserve water by protecting, maintaining, and improving the quality and potability of water for, among other purposes, “fish and aquatic life, . . . recreation and other beneficial uses.” The duty of establishing water quality standards are imposed upon the Board, under § 75-5-301, MCA. In ARM 16.20.607(4) the Board has classified the section of the Marias River involved as B-2. ARM 16.20.619(1) provides that waters classified by B-2 are those suitable for growth and marginal propagation of salmonid fishes and associated aquatic life.

Since the construction of Tiber Dam, and the release of waters therefrom the Marias River below Tiber Dam provides a habitat for a sizable population of trout and whitefish. Testimony before the Department in the administrative hearing indicated that prior to the construction of Tiber Dam, fishing on the Marias River and that area was not good and that fish found were mainly “gold eyes, suckers, carp, sturgeon and catfish.” After the Dam was completed in 1956, and waters were released from the Dam downstream, aided by implantation through the Department of Fish, Wildlife and Parks, the fishery was considerably improved with substantial numbers of trout, whitefish, and walleyes available for sportsmen. The reason given for the improvement of the fishery was the fact that cold waters were released downstream from the Dam which made the downstream Marias more conducive and thriving for trout, whitefish, and walleyes.

As the Dam is constructed, there are three means of water exit from the Dam and Lake Elwell. One is the overflow spillway, which is rarely used. Another is called the river outlet. Its intake is situated deep below the surface so it is reaching colder waters of Lake Elwell. A third is an auxiliary outlet whose water intake is nearer the surface of Lake Elwell approximately 85 feet above the intake of the river outlet.

The difference in elevation between the intakes for the river outlet and the auxiliary outlet are crucial to the trout fishery. In the summer season, the waters of Lake Elwell near the surface are higher in temperature than the waters well below the surface. In consequence, when waters are discharged from Lake Elwell through the river outlet, cooler waters are delivered downstream which aids the fishery. Waters taken from the auxiliary outlet, on the other hand, are warmer and are deleterious to the fishery. Curiously, the demarcation between the warm waters and the cooler waters is remarkably defined on a profile of Lake Elwell by a thin zone of separation called a “thermocline.”

The application of MRR to FERC for its hydroelectric development proposed that it would use waters taken exclusively through the river outlet. Thus it would use the cooler waters of Lake Elwell at all times and so be amenable to the downstream fishery. The applications of the Districts and of Gillette, on the other hand, proposed to use waters from the auxiliary outlet. When the concerns of the Department of Fish, Wildlife and Parks concerning the release of warmer waters to the downstream fishery became known, there were further proposals by the Districts and Gillette during the contested hearing to mix waters both from the river outlet and auxiliary outlet so as to keep the downstream water temperatures cooler.

Nonetheless, the Department originally issued 401 certifications to each of the three applicants. MRR contested the issuance of the 401 certifications to the Districts and to Gillette before the Board and at this stage Sportsmen intervened in the proceedings.

The District Court, in reviewing the contested case proceedings, found that on January 17, 1986, following two days of hearings, the Board closed the record. On May 16, 1986, the Board proceeded to allow “final oral arguments.” Up to that time, Gillette and the Districts had proposed alternating flows through the river and auxiliary outlets. At the May 16, 1986 proceeding, the attorney for Gillette suggested placing a siphon 30 to 40 feet below the auxiliary outlet so as to draw up water from the cooler region of the reservoir for elevated discharge through the auxiliary outlet. The District Court found that Gillette’s application had not been amended, yet the Board gave serious consideration to the “siphon scheme.” Ultimately, the Board adopted its conclusion of law No. 4, which provides:

“Construction and operation of a hydroelectric generation facility at Tiber Dam in which all water used for hydropower production is withdrawn from a point in the reservoir at least 85 feet below the elevation of the bottom of the present intake of the auxiliary outlet of Tiber Dam, or such lesser depth as is physically required by the configuration of the reservoir bottom, but in no event less than 60 feet below the elevation of the bottom of the present intake of the auxiliary outlet of the Tiber Dam, satisfies applicable water quality standards, the nondegradation requirements of the Montana Water Quality Act and Board rules and the public policy of the State of Montana.”

The District Court found that “there was not a shred of evidence in the record” to support that portion of the Board’s conclusion that withdrawing water from 60 feet below the auxiliary outlet of Tiber Dam satisfies applicable water quality standards, the nondegradation requirements of the Water Quality Act and the public policy of the state of Montana.

The District Court noted that in briefs submitted to it by Gillette, it was conceded that the Board’s order authorizing a siphon tube to the auxiliary outlet may not be based upon competent substantial evidence of the record and could be set aside. Gillette further suggested that the Board’s 401 certification order be confirmed to the extent that it would authorize Gillette to use the river outlet only. The District Court declined to do this, however, finding that the Board’s conclusion of law No. 4 was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. The District Court further found that due process would be violated if the certification could be issued without an amendment to the original applications and hearings held respecting the possibility of the use of a siphon or the river outlet.

We affirm the decision of the District Court. This is not a case where the District Court has improperly substituted its own judgment for that of the agency. Chagnon v. Hardy Constr. Co. (1984), 208 Mont. 420, 422-23, 680 P.2d 932, 933. In view of the lack of record supporting the use of the siphon, and the due process implications where the public and other parties are not given an opportunity to explore the proposal of a siphon, we obtain a definite and firm conviction that a mistake has been made. The appellant has shown prejudice from a clearly erroneous decision. Carruthers v. Board of Horse Racing (1985), 216 Mont. 184, 188, 700 P.2d 179, 181.

Gillette, however, has also contended that the issue posed in this case has become moot because of actions taken by the FERC relating to these applications and many others. On February 11, 1987, while the litigation here was in progress, the FERC issued its Order No. 464 amending its regulations to define when the certification requirements of § 401(a)(1) of the Federal Clean Water Act have been waived as a result of the failure of the state or other authorized certifying agency to act on a request for certification filed by an applicant before the Commission for a hydroelectric license. The order allowed certifying agencies one year after the certifying agency receipt of request for water quality certification to grant or deny the license applicant’s request for certification. The order was made retroactive. Efforts have been made in the Congress to have FERC withdraw its retroactive application of Order No. 464, or to modify the same by granting additional time for certification. Our record does not show the final disposition of these efforts. It does appear that the Department of Environmental Sciences takes the position that by lapse of time Montana has waived its right to certify because of Order No. 464.

It is however, not clearly established in the record that even though FERC may consider that the certifying agencies in Montana have waived the right to certify, that the decisions of a certifying agency, as modified by the courts, would have no effect on the eventual action of the FERC. In other words, the FERC, as far as the record here discloses, may yet give effect to the action of this state regarding the certifications. The eventual handling of the waiver question by the FERC, and the effect that the FERC will give to any waiver it finds, is completely within the discretion of the FERC and not foreseeable by us. For that reason, we have denied the motion to dismiss these proceedings as moot.

Sportsmen raise a final argument relating to the water certification process. Sportsmen contend that if the Board had adopted rules and regulations pertaining to water quality certifications such as here pending that the time provisions of the federal regulations applying to the state’s certification process would have been observed. The District Court refused to issue a writ of mandate requiring the adoption of such rules for the reason that the District Court had before it a petition for judicial review of an administrative action, and did not have before it an action involving the issuance of writ of mandate. The District Court was correct in this regard.

The decision of the District Court is affirmed in all particulars.

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

JUSTICE HUNT,

concurring:

I concur in the foregoing opinion of Justice Sheehy. In addition, I would award attorney fees to respondent Sportsmen.

Sportsmen is a non-profit citizens’ group with limited resources. It has acted to protect Montana’s water resources when our public servant, DHES, has been unwilling to do so. To this end, it has been forced to engage in protracted litigation, oftentimes in the face of questionable tactics by appellants.

Montana is fortunate to have citizens’ groups and attorneys such as these who are willing to take on public causes. They are entitled to attorney fees.


author: JUSTICE HARRISON

text:
    In the MATTER OF DECLARING S.P., C.P., H.M., J.M., K.M., Y.M., Youths in need of care.
    No. 88-571.
    Submitted Dec. 1, 1989.
    Decided Feb. 1, 1990.
    786 P.2d 642.

      James P. O’Brien, Missoula, for C.M. — Natural Father. Christopher Daly, Missoula, for B.N. — Grandmother.
    Marc Racicot, Atty. Gen., Kathy Seeley, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Co. Atty., Diane Conner, Deputy, Missoula, for respondent.
    William Boggs, Missoula, Guardian Ad Litem.
    Kristine Davenport, Missoula, for intervenors J.K. & N.K.
    Paulette Ferguson, Missoula, for J.R. — Grandmother.
    Morgan Modine, Missoula, for intervenor J.S.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This matter comes to us on appeal from a Missoula County District Court decision in which the parental rights of the natural father, C.M. were terminated. After finding H.M., J.M., Y.M., and K.M., youths in need of care, Judge Wheelis in his August 31, 1988 order, declared the parent-child relationship between C.M. and his four small children terminated, awarding permanent custody to the Department of Family Services (Department). The children were ordered permanently placed with foster parents J.K. and N.K. The Department, in consultation with the Ks and the children’s Guardian Ad Litem, was granted the right to supervise or restrict contact between the children and C.M. and other relatives.

The maternal grandmother, B.N., also appeals the District Court order. She alleges that the District Court abused its discretion when it awarded permanent custody to the Ks rather than herself.

We find the District Court’s order to be in the best interests of the children and, therefore, we affirm.

C.M., the natural father, presents two issues;

1. Did the District Court have subject matter jurisdiction to declare the M children dependent youths within the meaning of Montana’s child abuse, neglect and dependency statutes?

2. Do the best interests of the M children require termination of C.M.’s parental rights?

B.N., the maternal grandmother, presents three additional issues:

1. Did the District Court abuse its discretion in not awarding permanent custody to the maternal grandmother?

2. Should § 41-3-406, MCA, be interpreted to give relatives priority over non-relatives in custody proceedings?

3. Does permanent placement with concomitant governmental support of the Ks as foster parents violate the First Amendment to the United States Constitution?

The natural mother, D, was first married to J.P., by whom she had a daughter, S.P. and a son, C.P. After divorcing her first husband, D married C.M. and the couple had the four children at issue in this case: H.M., J.M., Y,M. and K.M. During this marriage C.M. was convicted of sexually abusing D.’s daughter from her first marriage. C.M. served over two years in the Oregon State Penitentiary for that crime. D subsequently divorced C.M. and began living with J.S. It is not clear from the record whether D. and J.S. were actually married.

J.S. and D and her six children from her two previous marriages eventually moved to Missoula, Montana. On or about October 24, 1986, D was killed and J.S. later confessed to murdering her.

The State, through the Department, placed the four M children in a Missoula receiving home since their natural father was in prison, their natural mother was dead, and their stepfather had confessed to murdering her. The two older children, S.P. and C.P., were eventually returned to their natural father, J.P., in California.

As is the normal procedure, the Department began legal proceedings to obtain temporary investigatory authority (TIA) and protective services. At the first hearing held in mid-November, 1986, the Department orally moved to amend the TIA, asking that the children be declared youths in need of care and that the Department be given temporary legal custody. Several parties were represented: Montana Social and Rehabilitative Services (whose interests in the case were assumed by the newly created Department of Family Services as of July 1, 1987) requested temporary investigative authority for the purpose of determining immediate temporary disposition and eventual permanent placement of the four M children; an attorney acting as the children’s Guardian Ad Litem; B.N., the maternal grandmother from Arkansas requesting custody of the four M children; J.K. and N.K., of Florence, Montana, interested parties and friends of the deceased mother, D, requesting custody of the four M children; J.S.R., C.M.’s mother and the children’s paternal grandmother from Missouri, also requesting custody; C.M., the children’s natural father who came from Oregon to ensure his parental rights continued; and J.S. the stepfather. Later, D’s sister and the children’s aunt, J.R., also sought custody, but eventually joined in asking that her mother, B.N. (maternal grandmother), be given the children.

Following the November 1986 hearing, Judge Wheelis declared the four M children to be youths in need of care and temporarily placed the children with the Ks.

On August 18 and November 13, 1987, the court held a separate hearing in order to put a treatment plan in place for C.M. In accordance with Part 6, Chapter 3 of Title 41, regarding termination of the parent-child legal relationship, the treatment plan for C.M. was approved by the court. C.M. began but did not finish Phase I of the treatment plan.

After the final hearing held in June and July of 1988, permanent custody of the children was given to the Department, permanent placement granted to the Ks, and C.M.’s parental rights terminated in an August 1988 order. These determinations resulted from five days of hearings with testimony from many witnesses, ranging from medical experts to the parties themselves, and a plethora of exhibits.

Of the several parties only two appeal. C.M. appeals that part of the order terminating his parental rights and the maternal grandmother appeals the fact she was awarded neither permanent custody nor permanent placement of the children. Additional facts will be discussed as necessary.

STANDARD OF REVIEW

The same standard of review applies to both termination of parental rights and custodial determinations. In both instances the District Court’s decision is afforded “all reasonable presumptions as to the correctness of the determination” and therefore such decision will not be disturbed on appeal “unless there is a mistake of law or a finding of fact not supported by substantial credible evidence that would amount to a clear abuse of discretion.” In the Matter of R.A.D. (Mont. 1988), [231 Mont. 143,] 753 P.2d 862, 865, 45 St.Rep. 496, 499.

Thus, regarding both C.M.’s parental rights’ claims and the maternal grandmother’s custody objections, we apply the same standard of review. That is, we presume the District Court’s determinations on both matters to be correct, unless such determinations are not supported by credible evidence.

ISSUE I: Subject matter jurisdiction

C.M. contends that the District Court did not have subject matter jurisdiction to declare the M children dependent youths within the meaning of the child abuse, neglect and dependency statutes. These statutes are found in Chapter 3 of Title 41, MCA.

C.M. bases his argument on the fact that certain procedural irregularities occurred. Initially, C.M. appeared pro se, and the District Court denied his request for a court-appointed attorney. At this preliminary hearing held November 14 through November 19, 1986, the Department requested temporary investigative authority and a determination of temporary disposition of the M children. On the second day of the November, 1986, hearings, the District court permitted the Department to amend the pleadings. The amendments asked that the M children be declared youths in need of care under § 41-3-102(10), MCA, and that the Department be granted temporary legal custody of the children. At that time no objection was made and the court granted the amendments.

On the third day of the hearing C.M. acknowledged that the court had authorized an attorney to help prosecute the case. However, the attorney refused to be entered as attorney of record since two days of testimony had already taken place. On his own, C.M. made two objections stating, “[I] understand that there would have been a question of personal judgment, parental jurisdiction, that I have raised in this matter if I would have known of it — if I would have known or if I would have had an attorney. The second matter of question is of service and time.” C.M. objected to the lack of personal service he received and the fact that he had only four days rather than five to appear and respond.

The court treated C.M.’s objections as a motion to stay proceedings and refused it. Testimony continued. The result of the hearing was that the M children were declared youths in need of care and temporarily placed with the Ks, with temporary custody vested in the Department. The Department received temporary investigative authority, and C.M. was granted limited contact with the children subject to the Department’s supervision and restrictions.

Another hearing was held on August 17, 1987 in which the Department brought two motions, one seeking approval of a treatment plan for C.M. and a second for change in custody. C.M. was represented by counsel at this juncture. The hearing was continued until November 13, 1987. When asked if he would continue to seek custody of his children, C.M. replied:

“I have to answer this very honestly. I think until I go through this program and I get the psychiatric treatment which I need, I don’t know that the children being with me permanently is any answer right now. They are loved. They are taken care of. They are disciplined. They have a home environment [with their foster parents].”

Although C.M.’s subject matter Jurisdiction argument is hard to follow, he seems to base his claim on two allegations. First, the State’s service on him was defective and resulted in improper notice. Second, by allowing the Department to orally amend their pleadings, the District Court was deprived of subject matter jurisdiction.

We first examine the question of service. According to his own testimony, C.M. was personally served in Oregon by his parole officer. Under the Montana Rules of Civil Procedure this is a perfectly acceptable means of obtaining out-of-state personal service. Rule 4D(3), M.R.Civ.P., provides that service on a person outside this State may be made in the manner provided for service within the State. Rule 4D(l)(a) provides that such service be made by any “person over the age of 18 not a party to the action.” C.M.’s parole officer who made the service is over 18 and not a party to the action. Service of process is sufficient.

C.M.’s complaint that the service did not allow him the five days’ notice to which he was entitled has little merit. The show cause order was served on C.M. on Friday, November 7, 1986, and the show cause hearing was set for November 14, 1986. Because Tuesday, November 11, 1986 was a legal holiday, C.M. did not receive five days’ notice of the hearing on the abuse, neglect or dependency petition as required by § 41-3-401(4), MCA. While it is true C.M. received one day less than the statutorily required notice, he was not substantially harmed by the error. This is evidenced by the fact that he was able to attend the hearing and represent his interests there.

This Court has previously refused to overturn a judgment where failure to give proper notice did not prejudice the appealing party. See Williams v. Superior Homes, Inc. (1966), 148 Mont. 38, 417 P.2d 92. Obviously, C.M. was not prejudiced by receiving four rather than five days’ notice. “[L]ack of notice does not automatically entitle a party to relief, but is a consideration to be weighed by the court in exercising its discretion.” In re Marriage of Neneman (1985), 217 Mont. 155, 160, 703 P.2d 164, 167.

In addition, this was a temporary custody hearing not the final permanent custody hearing. Such procedural defects in a temporary custody hearing do not invalidate subsequent permanent legal custody proceedings. Matter of M.E.M. (1984), 209 Mont. 192, 196, 679 P.2d 1241, 1243.

Turning to the issue of the oral amendments, we find appellant’s argument to be completely without merit. Again, C.M.’S argument lacks clarity. Rather than restating C.M.’s indiscernible allegations regarding lack of subject matter jurisdiction caused by the court’s allowing oral amendments to the petition, suffice it to say we find that the District Court followed the statutory scheme. By following the statutory scheme, the court did properly obtain subject matter jurisdiction and such jurisdiction did continue throughout the proceedings.

This action was originally filed on October 21, 1986, as a Petition for Temporary Investigative Authority and Protective Services under the provisions of Chapter 3, Title 41, MCA. The petition was brought by the Missoula County Attorney’s office and stated, in compliance with § 41-3-401, MCA, the four children were abused, neglected or dependent or in danger of becoming abused, neglected or dependent. The petition was supported by an affidavit sworn by a social worker from the Missoula County Office of Human Services and a Report to the Court containing pertinent information, including the full names, ages and addresses of the children and the names and addresses of their parents; the names and addresses of all persons who were necessary parties to the action along with their relationships to said children; and the nature of the alleged abuse, neglect or dependency. This conforms to the requirements of § 41-3-401(9), MCA, as the two accompanying documents were incorporated by reference into the petition. The petition asked for temporary investigative authority and protective services of the Department, that the court order a show cause hearing, that a guardian ad litem be appointed for the children, and any other relief the court might in its discretion order. Section 41-3-401(10), MCA.

Upon receipt of the petition Judge Wheelis, acting in accordance with § 41-3-401(2), MCA, set a date for an adjudicatory hearing on the petition. The hearing, labeled a show cause hearing, was set for Friday, November 14, 1986. This was within the mandatory twenty days as prescribed by the section at that time. (The requirement that an adjudicatory hearing be held within twenty days of filing of the petition has since been amended out of § 41-3-401(2), MCA.)

As discussed above, C.M., as a parent, received notice of the hearing, albeit only four days’ notice, in accordance with § 41-3-401(4), MCA. At the same time the petition was filed, the date for the adjudicatory hearing was set and notice was sent to C.M., thus meeting all pertinent provisions of § 41-3-401, MCA.

Section 41-3-402, (1985) MCA, which dovetails with § -401, sets out the criteria for a petition for temporary investigative authority and protective services. Again, all provisions of § 41-3-402, MCA, were met: the county attorney filed a petition for temporary investigative authority and protective services (subsection (1)); the petition specifically stated the authority requested and the facts establishing probable cause were set out (subsection (2)); and the petition was supported by the above-mentioned Report to the Court (subsection (3)).

Upon the Missoula County Attorney’s filing of the petition for temporary investigative authority and protective services, the Missoula District Court issued an order granting the relief necessary for immediate protection of the M children, in accordance with the provisions of § 41-3-403(l)(a), MCA. The order provided for a show cause hearing within twenty days, as required by § 41-3-403(l)(c), MCA, and was served in accordance with § 41-3-403(l)(b), MCA. Furthermore, the court granted relief in substantially the same form as provided for in subsection (2) of § 41-3-403, MCA, thus meeting all requirements of the statute. Obviously, both the County Attorney and the District Court adhered very closely to the law in presenting the petition and issuing the order.

On November 14-19, 1986, the adjudicatory hearing was held, resulting in temporary disposition of the children to the Ks. Again, the provisions of the statute controlling such proceedings, § 41-3-404, were strictly followed.

On the second day of this hearing the county attorney moved to orally amend the petition, asking that the M children be declared youths in need of care as dependent youths under § 41-3- 102(10), MCA, and that the Department be granted temporary custody of the children. No objections being heard at the time, the judge granted the motion to amend. At the conclusion of the hearing, both requests in the motion were granted by Judge Wheelis.

Eleven months later, C.M. moved for a new trial, or, in the alternative, that Judge Wheelis’ December 15, 1986 Findings of Fact and Conclusions of Law be amended, striking all references to the children as dependent youths. C.M. argued then, as he does now, that the petition for temporary investigative authority and protective services does not contemplate or provide for adjudication of allegedly abused, neglected or dependent children, and by allowing the two above-mentioned oral amendments the District Court somehow did not have subject matter jurisdiction. Now, as then, the argument’s logic fails.

Section 41-3-401(11), MCA, clearly states that abuse, neglect and dependency petitions “may be modified for different relief at any time within the discretion of the Court.” (Emphasis added.) In allowing the oral modification of the petition, the court properly availed itself of the discretion granted by the statute.

Moreover, Rule 15(b), M.R.Civ.P., allows amendments of the pleadings to conform to the evidence, and Montana case law supports this rule. This Court has upheld amendments made on the day of trial and even during trial. See, for example, Kearns v. McIntyre Construction Co. (1977), 173 Mont. 239, 567 P.2d 433 and Keaster v. Bozik (1981), 191 Mont. 293, 623 P.2d 1376.

C.M.’s claim that by allowing the oral amendments the court deprived him of his right to demand that the State prove by clear and convincing evidence that the children were abused, neglected or dependent is completely without merit. The oral amendments did not prejudice C.M.: the Department’s theory was not changed, the facts noticed in the pleading were not changed, and the type of relief requested did not change. It must be remembered that this was only the adjudicatory hearing. For the children’s well-being it was essential that the court make a temporary disposition as quickly as possible. By going ahead with the hearing on the petition as orally modified the court was able to act in the best interests of the children. Final dispositional hearing was not held until June 27, 1988, over a year and half after the adjudicatory hearing, giving C.M. ample time to dispute and present evidence that his children were abused, neglected or dependent.

The record is replete with evidence that the children were indeed abused, neglected and dependent within the clear meaning of the statute. C.M. himself testified at the final dispositional hearing that he favored permanent legal custody with the Ks. There is no reason to believe that the trial court abused its discretion and the orders issued in this case will stand.

ISSUE II: Termination of C.M.’s Parental Rights

C.M. argues that the best interests of the children do not require termination of his parental rights. In support of this argument C.M. points to limited instances in the transcript where the foster mother testified she would have no objection to C.M. having supervised contact and a psychologist testified that some contact between the children and their natural father would pose little risk to the children.

However, the child psychologist who counseled the four M children recommended no visitation between C.M. and the children. The child psychologist stated that terminating C.M.’s rights would help the children and it would be in their best interests to allow the Ks to adopt them. C.M.’s evaluating psychologist also stated terminating C.M.’s parental rights may, in the long run, be beneficial to C.M.

Once again there is substantial, credible evidence to support the District Court’s finding of fact that it is in the children’s best interests that C.M. not have the right to visit or contact the children. Therefore, we will not overturn the decision on appeal.

ISSUE III: Not Awarding Custody to the Maternal Grandmother and Status of the Current Law

B.N., the maternal grandmother, argues that the District Court abused its discretion by not awarding her permanent custody of the children. B.N. asserts that the District Court’s findings of fact on this issue are clearly erroneous because the findings concerning her were based almost solely on the opinions of a witness who had no firsthand knowledge of B.N. and who admitted she relied almost totally on the “bad press” reported by B.N.’s adversaries. We find this assertion to be totally without foundation.

Contrary to B.N.’s allegations, most of the District Court’s findings pertaining to her were established by her own testimony, not by the expert she claims the court relied on almost exclusively. B.N. herself testified that she is 65 years old, divorced and diabetic; that she completed only the 8th grade in school with some additional training later in life; and that each of her nine children quit school before graduating and that several left home before age sixteen. Other of the District Court’s findings of fact were established by other witnesses. For example, B.N.’s failure to keep promises and making inappropriate comments to the children was testified to by N.K., the children’s foster mother.

Again, there was substantial credible evidence to support the District Court’s findings that it was in the best interests of the children to place them with the Ks rather than the maternal grandmother. There is no abuse of discretion.

B.N. next argues that the current law not giving relatives priority over nonrelatives should be reversed. The controlling statute in this matter states that following the dispositional hearing the court may “[transfer legal custody to ... a relative or any other individual who ... is found by the court to be qualified to receive and care for the youth . . . “ Section 41-3-406, MCA.

This Court has often upheld custody given to nonrelatives over relatives, and in all cases, the paramount consideration is the best interests of the children. Matter of M.N. (1982), 199 Mont. 407, 410, 649 P.2d 749, 751, and cases cited therein. Moreover, “[A] grandmother does not, by virtue of her status as a grandparent, have any superior right of adoption or custody to that of a nonrelative.” Matter of M.N., 199 Mont. at 409, 649 P.2d at 750.

Appellant B.N. is asking us to overrule our previous line of cases and to assume the legislative function of rewriting the statute. We will do neither. Section 41-3-406, MCA, and the cases interpreting it are good law. As noted in Matter of M.N., the section is not mandatory but gives discretion to the district court whether to award custody to a relative. Matter of M.N., 199 Mont. at 410, 649 P.2d at 751.

ISSUE IV: Placement of the Children with Christian Foster Parents

Lastly, B.N. contends by placing the children with the Ks, who maintain their own ministry, the State violated the establishment clause of the First Amendment prohibiting government support of religion. As with her other arguments, B.N.’s position is untenable.

The United States Supreme Court set forth the standard to determine whether state aid constitutes the establishment of religion in Lemon v. Kurtzman (1971), 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745. According to the three-prong test delineated in Lemon, state aid is constitutional if: (1) it has a secular purpose, (2) its primary effect neither advances nor inhibits religion, and (3) it does not foster excessive government entanglement in religion. Lemon, at 612-13, 91 S.Ct. at 2111, 29 L.Ed.2d at 755.

Here, the aid provided to the Ks for foster care meets all three requirements of the Lemon test. First, its purpose, to provide parental care for the M children is clearly secular. Second, the primary effect of the foster care placement and attendant payments is that the children now have a safe, loving and secure home and parents, which does not advance nor inhibit religion. Third, the placement and payments do not excessively entangle the State in religion. As the Department’s social worker testified, the State makes foster care payments to foster parents to reimburse their expenses. Foster parents, whether ministers or not, may then do as they wish with that money and do not have to account for the money. Placement with and payment to the Ks for foster care of the four M children in no way violates the First Amendment.

We affirm the decision of the District Court.

JUSTICES HUNT, SHEEHY, McDONOUGH and WEBER concur.


text:
    MARK ANDREWS, Claimant and Appellant, v. FORD CONSTRUCTION, Employer, and State Farm Fire & Casualty Co., Defendant and Respondent.
    No. 89-014.
    Submitted on Briefs Dec. 21, 1989.
    Decided Feb. 5, 1990.
    786 P.2d 18.
    George H. Corn, Bell, Corn & Bell, Hamilton, for claimant and appellant.
    Robert E. Sheridan, Garlington, Lohn & Robinson, Missoula, for defendant and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Andrews appeals a decision of the Workers’ Compensation Court wherein it found that Andrews was not entitled to recover workers’ compensation benefits from Ford Construction. We affirm.

The sole issue presented for review is whether the Workers’ Compensation Court erred in holding that § 39-71-405, MCA, is inapplicable to this case because no contractual relationship existed between appellant’s employer, Gasvoda Construction Co., and Ford.

On September 22, 1983, appellant suffered an industrial accident while working for Jay Gasvoda d/b/a Gasvoda Construction Company (Gasvoda). At the time Gasvoda was uninsured as his workers’ compensation insurance had lapsed two months prior due to Gasvoda’s failure to pay premiums.

Both Ford and Gasvoda are construction contractors. Gasvoda’s business primarily consists of all types of excavation work. Ford’s primary business includes setting concrete forms, building basements, general building construction and setting-up foundations, including trailer foundations.

At the time of appellant’s injury, Gasvoda was doing some excavation work for Michael and Clarence Hendon on property they owned near Victor, Montana. The Hendons had hired Gasvoda to do the excavation work necessary to place a double-wide mobile home on the property. The excavation work consisted of five specific items: (1) excavating the double-wide site; (2) installing 100 feet of sewer line to the garage and house; (3) removal and installation of a pressure system; (4) installing a 150-foot water line from well to house; and (5) back filling after the concrete was set.

After the Hendons hired Gasvoda, Gasvoda suggested to Ford that he contact the Hendons about doing other work involved in the project. The Hendons hired Ford Construction to install the concrete footings for the mobile home, and they informed Ford where they wanted the mobile home located. Gasvoda agreed to follow Ford’s specifications regarding excavating the foundation to ensure fulfillment of the Hendons’ wishes. So, pursuant to the Hendons’ directions, Ford staked the location for the excavation and Ford and Gasvoda worked together to establish the proper grade for the foundation and concrete footings.

No written agreement between Ford and Gasvoda existed for the Hendon project. The Hendons paid Ford and Gasvoda separately. Charles Ford testified that he did not feel he could have fired Gasvoda if he had thought Gasvoda was doing a poor job because Ford had not hired Gasvoda. Additionally, Ford never paid appellant’s wages nor was appellant ever on Ford’s payroll.

At issue in this case is § 39-71-405, MCA, which provides as follows:

“39-71-405. Liability of employer who contracts work out. (1) An employer who contracts with an independent contractor to have work performed of a kind which is a regular or a recurrent part of the work of the trade, business, occupation, or profession of such employer is liable for the payment of benefits under this chapter to the employees of the contractor if the contractor has not properly complied with the coverage requirements of the Worker’s Compensation Act. Any insurer who becomes liable for payment of benefits may recover the amount of benefits paid and to be paid and necessary expenses from the contractor primarily liable therein.
“(2) Where an employer contracts to have any work to be done by a contractor other than an independent contractor, and the work so contracted to be done is a part or process in the trade or business of the employer, then the employer is liable to pay all benefits under this chapter to the same extent as if the work were done without the intervention of the contractor, and the work so contracted to be done shall not be construed to be casual employment. Where an employer contracts work to be done as specified in this subsection, the contractor and the contractor’s employees shall come under that plan of compensation adopted by the employer.
“(3) Where an employer contracts any work to be done, wholly or in part for the employer, by an independent contractor, where the work so contracted to be done is casual employment as to such employer, then the contractor shall become the employer for the purposes of this chapter.” (Emphasis added.)

The Workers’ Compensation Court found that the prerequisite contractual relationship between Ford and Gasvoda did not exist. In other words, Ford did not hire or contract with Gasvoda to work on the Hendon project. Therefore, § 39-71-405, MCA, did not apply and appellant could not recover benefits from Ford.

Because we are reviewing interpretation of a statute, the standard of review is whether the Workers’ Compensation Court’s interpretation of the law is correct. Wassberg v. Anaconda Copper Co. (1985), 215 Mont. 309, 314, 697 P.2d 909, 912. Upon review, we find that the Workers’ Compensation Court correctly determined that § 39-71-405, MCA, did not impose liability on Ford.

Appellant argues that he is entitled to relief under § 39-71-405, MCA, because Ford acted as a prime contractor on the Hendon project and Gasvoda was an uninsured subcontractor. In his argument, appellant relies heavily on the fact that Gasvoda agreed to excavate the foundation site according to Ford’s specifications and that the two worked together to meet the specifications. However, the inherent necessity that Ford and Gasvoda work together on a particular aspect of the project so that the Hendons’ project could be successfully completed does not elevate Ford to a prime contractor.

If Ford were the prime contractor for the Hendon project then Ford would have been responsible for the entire project. However, the record clearly establishes that Ford’s responsibility only extended to placing the footings and pouring the concrete for the mobile home’s foundation. Although Ford and Gasvoda worked together as necessary for Ford to carry-out Hendons’ instructions regarding location of the mobile home, Ford was not involved with the other work Gasvoda did for Hendons. Ford simply did not function as a prime contractor, rather both Gasvoda and Ford each worked directly for the Hendons with each having responsibility for separate jobs the Hendons wanted accomplished.

In State Compensation Ins. Fund v. Castle Mountain Corp. (1987), 227 Mont. 236, 239-240, 739 P.2d 461, 464, we discussed § 39-71-405, MCA, in light of the purpose behind the statute. We quoted the following statement from IC Larson, Workmen’s Compensation Law, § 49.11 at 9-21 and 9-22:

“The purpose of this [‘contractor-under’ statutes like § 39-71-405, MCA] legislation was to protect employees of irresponsible and uninsured subcontractors by imposing ultimate liability on the presumably responsible principal contractor, who has it within his power, in choosing subcontractors, to pass upon their responsibility and insist upon appropriate compensation protection for their workers. This being the rationale of the rule, in the increasingly common situation displaying a hierarchy of principal contractors upon subcontractors upon sub-subcontractors, if an employee of the lowest subcontractor on the totem pole is injured, there is no practical reason for reaching up the hierarchy any further than the first insured contractor.” (Emphasis added.)

Although Gasvoda qualifies as “irresponsible and uninsured,” nothing in the record leads to a conclusion that Ford had the ability to choose Gasvoda for the Hendon job or that Ford could control Gasvoda’s work. To the contrary, Gasvoda chose Ford in the sense that initially Gasvoda suggested to Ford that he contact Hendons.

The plain language of § 39-71-405, MCA, reflects the purpose of § 39-71-405, MCA, by incorporating the elements of choice and control as necessary for imposing liability. Each subsection begins with the phrase “an employer who contracts work out.” This language describes an employer who hires subcontractors to do all or some of the employer’s work. If Ford had hired or contracted work out to Gasvoda, then Ford would have been in a position to choose or hire Gasvoda initially. Further, Ford would have been in a position to exercise control over Gasvoda and insist that Gasvoda carry workers’ compensation insurance. However, because no contractual relationship existed between Ford and Gasvoda, Ford was never in a position to take any precautionary measures that would further the purpose of the Workers’ Compensation Act which is to “provide for the protection of workers.” Without a contractual relationship, an insured contractor would be at risk to the employees of any uninsured contractor working on the same project without any means of control over the uninsured contractor. Such a result would be unfair and would not promote the statute’s purpose which is to impose liability on employers who can take affirmative action to protect workers.

In sum, appellant fails to establish that Gasvoda and Ford were anything other than two contractors hired by the Hendons to work on the same project. Section 39-71-405, MCA, requires a contractual relationship to exist between an employer and an uninsured subcontractor before liability for workers’ compensation benefits will be imposed on the employer. Because no such contractual relationship existed between Ford and Gasvoda, § 39-71-405, MCA, is inapplicable and appellant cannot recover benefits from Ford Construction.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, Mc-DONOUGH and WEBER concur.