text:
    SARAH GARZA, Plaintiff and Respondent, v. DENISE S. PEPPARD, Defendant and Appellant.
    No. 85-21‘5.
    Submitted on Briefs March 28, 1986.
    Decided July 15, 1986.
    722 P.2d 610.

      Mclntee & Whisenand, Bruce 0. Bekkedahl, Williston, N.D., for defendant and appellant.
    Phillip N. Carter, Sidney, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Denise S. Peppard, the defendant, appeals from a jury verdict and subsequent judgment for Sarah Garza, the plaintiff, entered in the Richland County District Court. She raises issues of whether the District Court improperly excluded medical evidence, whether she had a fair trial after the plaintiff’s attorney questioned a prospective juror on his employment with an automobile insurance company, and whether the District Court erred in failing to rule on her motion for a new trial. We affirm.

The defendant rear-ended a pick-up truck in which the plaintiff was a passenger in January 1981. In May 1982 the plaintiff filed an action against defendant for damages suffered as a result of the collision. Following trial, the jury returned a verdict in favor of defendant. The District Court, however, entered judgment notwithstanding the verdict for the plaintiff which was affirmed by this Court on appeal. Garza v. Peppard (Mont. 1984), [213 Mont., 25,] 689 P.2d 279, 41 St.Rep. 1922. In that decision, this Court found no error in the District Court’s action because the defendant was negligent as a matter of law for failing to keep a proper lookout. Garza, 689 P.2d at 280, 41 St.Rep. at 1924. The case was remanded to the District Court for trial on the issues of proximate cause and damages.

The second trial was held in February 1985. During voir dire, counsel for the plaintiff questioned a prospective juror, Henry J. Schepens, as follows:

“MR. CARTER: And are you still employed?

“MR. SCHEPENS: No. I am retired.

“MR. CARTER: You are retired, and you used to be an insurance agent; were you not?

“MR. SCHEPENS: Right.

“MR. CARTER: You sold car insurance; didn’t you?

“MR. SCHEPENS: Yes.

“MR. CARTER: Would that fact render your decision in this matter biased in anyway?

“MR. SCHEPENS: It’s possible.

“MR. CARTER: Could you explain that?

“MR. SCHEPENS: Well, I handled a lot of claims, you know, directly and indirectly, including whiplash, and so forth. ”MR. CARTER: Do you have a preconceived idea about the term ‘whiplash’?

“MR. SCHEPENS: I think I could tell you, yes, I have.”

At this point, on Mr. Carter’s request, counsel approached the bench and went into chambers. Defense counsel then objected and moved for a mistrial based on the improper mention of insurance. The District Court denied the motion and instructed the jury that this was a proper area of inquiry to determine possible bias or prejudice and to disregard any reference to insurance in all other respects.

During the presentation of defendant’s case, Dr. Ronald Wright, a chiropractor who treated the plaintiff, testified about her medical condition. Dr. Wright treated the plaintiff after purchasing a chiropractic practice from Dr. Richard Pokorny who had treated her previously. The plaintiff objected, on the basis of hearsay, to any evidence, testimony, or opinion by Dr. Wright utilizing Dr. Pokorny’s records because Dr. Wright did not recall using Dr. Pokorny’s records. She voiced her objection prior to Dr. Wright’s testimony. In chambers, the District Court ruled that Dr. Wright’s testimony would be limited to his own knowledge and that he could rely on Dr. Pokorny’s records only to the extent he used them in examining and treating the plaintiff.

The jury returned a verdict in favor of the plaintiff for $132,095.03. The defendant then filed a motion for a new trial. Although the parties briefed and argued this motion, the District Court did not have time to rule within the 45 day time limit set out in Rule 59(d), M.R.Civ.P.

On appeal, the defendant raises three issues:

(1) Whether defendant received a fair trial after the plaintiff’s attorney questioned a prospective juror on the juror’s previous employment as an automobile insurance adjuster.

(2) Whether the District Court erroneously excluded medical evidence and testimony from Dr. Wright which relied on a prior treating chiropractor’s records.

(3) Whether the District Court erred in failing to rule on defendant’s motion for a new trial.

In the first issue, the defendant argues that she was prejudiced when the plaintiffs attorney asked a prospective juror about his employment with an automobile insurance company. She claims that the specific questions asked were unnecessary and that general introductory questions concerning possible bias or prejudice which did not mention insurance would have been adequate. In Borkoski v. Yost (1979), 182 Mont. 28, 594 P.2d 688, this Court discussed to what extent counsel could ask prospective jurors about their business relationship with insurance companies and reviewed Montana case law on the subject. Prior to 1973, the general rule was that questioning a prospective juror on investments in or business relations with insurance companies was prohibited. Borkoski, 182 Mont. at 34, 594 P.2d at 691. In 1973, in Haynes v. County of Missoula (1973), 163 Mont. 270, 287-88, 517 P.2d 370, 380, this Court adopted a general rule that “if counsel acts in good faith, he may question prospective jurors on voir dire respecting their interest in, or connection with liability insurance companies.” The rationale for this rule is to allow counsel to look for bias or prejudice on the part of a prospective juror enabling intelligent exercise of challenges and thus securing a fair and impartial jury. Haynes, 163 Mont. at 287-88, 517 P.2d at 380. Here, counsel for plaintiff inquired about the prospective juror’s former occupation without any suggestion that defendant had liability insurance. See Rule 411, M.R.Evid. He did not repeatedly inquire about insurance of each juror, a practice condemned in Avery v. City of Anaconda (1967), 149 Mont. 495, 428 P.2d 465. He used two brief questions to one prospective juror about his past work of selling insurance and then asked whether this would bias his decision. Such a limited inquiry serves the exact purpose of the general rule adopted in Haynes, supra. We hold that this brief questioning did not prejudice the defendant and did not prevent a fair trial.

We question the timeliness of the defendant’s objection, as well. Counsel made no objection at the time the questions were asked. Without proper objection, this Court will not find prejudicial error. Beeler v. Butte London Copper Development Co. (1910), 41 Mont. 465, 110 P. 528.

The defendant claims that the District Court erroneously excluded certain medical evidence and testimony as the second issue. When Dr. Wright testified, he stated the following: (1) he purchased Dr. Pokorny’s practice and patient files which included plaintiffs file; (2) he treated plaintiff on June 5, 1981; (3) at that time she complained of headaches and neck and shoulder pain; (4) his records did not show that she ever complained of any lower back problem; (5) his treatment was only in the neck area; (6) if she had complained of a lower back injury he would have run tests to diagnose the problem prior to any treatment; and (7) based on the information he had available, she did not suffer lower back problems at the time he treated her. On cross-examination, Dr. Wright admitted he did not recall plaintiff specifically, his only session with her lasted 10-15 minutes, he took no X-rays, she may have told him about other problems but he did not remember anything else, and that her upper back and neck injuries resulted from the collision.

The defendant first argues that documents containing specific written information concerning treatment and statements of Dr. Pokorny with respect to diagnosis of the plaintiff could have been admitted. The questioned documents were brought to this Court’s attention as part of an appendix to defendant’s brief. They were never offered as exhibits at trial and thus are not in the record as refused exhibits. A review of the transcript shows no offer of proof to the District Court on what information the proposed exhibits contained. The Colorado Supreme Court discussed a similar problem in People In Interest of M.S.H. (Colo. 1983), 656 P.2d 1294, where the appellant had not designated a tape as an exhibit, had not made an offer of proof, and stated he had not heard the tape so he did not know its contents. The tape was not part of the record on appeal. The Colorado court presumed the trial court’s exclusion of the tape was correct because “[bjased on this record we are unable to evaluate the admissibility of the tape, and so cannot consider [appellant’s] assertion that the trial court erred in excluding it from evidence.” M.S.H.,656 P.2d at 1297. Similarly, this Court is unable to evaluate or rule on the admissibility of documents which were never offered into evidence or described in the record.

In Farmers State Bank of Conrad v. Iverson (1973), 162 Mont. 130, 509 P.2d 839, we condemned counsel for attaching extraneous material in appendices in an attempt to introduce evidence through the “back door.” This Court will not consider such material on appeal and remind counsel again that such a practice will not be tolerated.

Defendant’s second argument in this issue is that the District Court improperly limited that part of Dr. Wright’s testimony which was based on Dr. Pokorny’s records. The plaintiff objected to this testimony claiming that because Dr. Wright did not specifically recall using Dr. Pokorny’s records in treating the plaintiff, the records were excludable as hearsay and not within any hearsay exception. Rule 803(4), M.R.Evid. provides that: “Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment” are not excluded by the hearsay rule. Rule 703, M.R.Evid. allows an expert to testify based on facts or data not admissible in evidence if the data is reasonably relied on by experts when forming opinions or inferences on the subject. In Klaus v. Hilberry (1971), 157 Mont. 277, 485 P.2d 54, this Court allowed a doctor to testify from his case file which included reports and documents from another doctor. We noted that the situation presented was an exception to the hearsay rule. Here, Dr. Wright was continuing Dr. Pokorny’s treatment of the plaintiff and utilized Dr. Pokorny’s records in his case file. He stated that he would never treat Dr. Pokorny’s patients without reviewing Dr. Pokorny’s records. The foundation laid could place the excluded testimony within the hearsay exception, Rule 703, M.R.Evid., and the holding in Klaus, 157 Mont. at 286, 485 P.2d at 59. The District Court erred in excluding this testimony.

Further, any error would have been harmless because the defendant was not prejudiced by the failure to allow this testimony. Where evidence has been improperly excluded, but goes to prove only facts established by other evidence, the ruling is harmless error. Wollaston v. Burlington Northern, Inc. (1980), 188 Mont. 192, 612 P.2d 1277. The excluded testimony, according to statements made by counsel in chambers, would have shown that Dr. Pokorny did not record any complaints from the plaintiff about lower back problems and did not treat the plaintiff’s lower back. Presumably, the defendant would use this to argue that plaintiff did not complain about this problem, she would have complained if the problem existed in order to receive medical treatment, and therefore she did not suffer from lower back problems until after her visit to these chiropractors. At best, this is negative evidence with weak evidentiary value given possible explanations for the absence of a notation in Dr. Pokorny’s records. In addition, Dr. Wright testified to this same information from his own records. Dr. Ise, an orthopedic surgeon, also testified that the medical records did not reflect a report of lower back problems until about 8-10 months after the accident. This included the time during which Dr. Pokorny and Dr. Wright treated the plaintiff. The excluded evidence would not have provided any different information than the jury received through the other testimony and evidence. We hold that the exclusion of this testimony from Dr. Wright based on Dr. Pokorny’s records was harmless error.

The last issue the defendant raises concerns the District Court’s failure to rule on her motion for a new trial. When the District Court failed to rule on the motion which raised the same issues as in this appeal, it was deemed denied under Rule 52(c), M.R.Civ.P. Since the District Court’s judgment is correct, there was no error in failing to grant a new trial.

The verdict and judgment of the District Court are affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE GULBRANDSON

license: Public Domain

text:
    JOHN D. LASAR, Claimant and Appellant, v. E.H. OFTEDAL & SONS, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 85-479.
    Submitted on Briefs March 21, 1986.
    Decided July 15, 1986.
    721 P.2d 352.
    Herndon, Harper & Munro, James G. Edmiston, Billings, for claimant and appellant.

      Crowley Law Firm, Terry G. Spear, Billings,, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

John D. Lasar, the claimant, appeals a judgment of the Workers’ Compensation Court denying him an award of costs and attorneys’ fees. He does not appeal the denial of a lump sum award or the denial of an imposition of the 20% penalty made as part of the same judgment. We affirm.

The claimant was injured in 1979 while employed by E.H. Oftedal & Sons, a Montana employer insured by the State Compensation Insurance Fund (defendant). The defendant paid temporary total disability wage loss benefits from the time of the accident.

On November 30, 1984 the claimant petitioned for a hearing requesting that he be found totally and permanently disabled, that his benefits be converted to a lump sum, that a penalty be imposed on defendant, and that he receive attorneys’ fees and costs. The parties had a pre-trial conference with the hearings examiner on January 3, 1985. The defendant deposed the claimant the next day and conceded permanent total disability around January 17, 1985. The case proceeded to a hearing on February 5,1985, on the remaining issues. The Workers’ Compensation Court found the claimant was not entitled to a lump sum, a penalty, or attorneys’ fees and costs in a judgment dated July 23, 1985.

The claimant raises one issue on appeal:

Whether the Workers’ Compensation Court erred in denying the claimant an award of attorneys’ fees and costs.

The claimant sought attorneys’ fees and costs at the lower court level pursuant to Section 39-71-611, MCA, and argues entitlement under Section 39-71-612, MCA, on appeal. The judgment of the Workers’ Compensation Court does not specify which statute was the basis for the decision. We find the claimant is not entitled under either statute.

Section 39-71-611, MCA, (1983) states:

“In the event an insurer denies liability for a claim for compensation or terminates compensation benefits and the claim is later adjudged compensable by the workers’ compensation judge or on appeal, the insurer shall pay reasonable costs and attorneys’ fees as established by the workers’ compensation judge.” This is not a case where the insurer denied liability for a claim or terminated benefits. Thus, the claimant is not entitled to attorneys’ fees and costs under this statute. See Krause v. Sears Roebuck & Co. (1982), 197 Mont. 102, 641 P.2d 458.

Section 39-71-612, MCA, (1983) states:

“(1) If an employer or insurer pays or tenders payment of compensation under chapter 71 or 72 of this title, but controversy relates to the amount of compensation due and the settlement or award is greater than the amount paid or tendered by the employer or insurer, a reasonable attorney’s fee as established by the division or the workers’ compensation judge if the case has gone to a hearing, based solely upon the difference between the amount settled for or awarded and the amount tendered or paid, may be awarded in addition to the amount of compensation.

“(2) When an attorney’s fee is awarded against an employer or insurer under this section there may be further assessed against the employer or insurer reasonable costs, fees, and mileage for necessary witnesses attending a hearing on the claimant’s behalf. Both the necessity for the witness and the reasonableness of the fees must be approved by the division or the workers’ compensation judge.” Under this statute, there are two conditions to an award of attorneys’ fees and costs where an insurer has paid or tendered payment of compensation. First, the amount of compensation must be in controversy and second, the amount awarded must exceed that paid or tendered. Here, the defendant conceded permanent total disability nearly three weeks before trial, before discovery or any new written documentation other than the claimant’s deposition had been completed. Since the insurer agreed on the amount of compensation due, no controversy existed at trial and the amount awarded was the same as that agreed upon as due.

Contrary to claimant’s contention, this case is not “on all fours” with Krause, 197 Mont. 102, 641 P.2d 458. In Krause, the defendant took the position that the claimant was not permanently totally disabled because he refused to submit to surgery recommended by an examining physician. During its opening statement at the hearing, the defendant conceded permanent total disability for the first time. This Court held that, under Section 39-71-612, MCA, the claimant was entitled to attorneys’ fees and costs relating to his proof of permanent total disability. Here, three weeks before the hearing, after receiving only the claimant’s deposition and no other discovery materials, the defendant agreed the claimant was permanently totally disabled. The claimant was not required to submit any proof on this issue at the hearing. Because of these differing circumstances, Krause is not controlling authority for the case at bar. We hold that the Workers’ Compensation Court correctly denied the claimant’s request for attorneys’ fees and costs.

The decision of the Workers’ Compensation Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, MORRISON and HUNT concur.


author: MR. JUSTICE MORRISON

text:
    In re the MARRIAGE OF DONALD E. SINGER, Petitioner and Appellant, and GEORGIA J. SINGER, Respondent and Respondent.
    No. 85-578.
    Submitted on Briefs May 15, 1986.
    Decided July 15, 1986.
    721 P.2d 755.

      Kelly M. Hogan, Bozeman, for petitioner and appellant.
    Gregory 0. Morgan, Bozeman, for respondent and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Donald E. Singer (husband) appeals the findings of fact, conclusions of law and judgment of the Eighteenth Judicial District Court distributing his and his ex-wife’s, Georgia J. Singer (wife), marital property. The sole issue raised on appeal is whether the District Court equitably apportioned the marital estate pursuant to Section 40-4-202, MCA. We find the apportionment to be equitable and affirm the decision of the trial judge.

Husband filed a petition for dissolution of his marriage in April of 1983. The hearing was held December 4, 1983. At that time, the parties had been married for approximately 35 years. Husband was 55 years of age and a retired civil service employee. His formal education had ended after the eighth grade. Wife was 56 years of age and an elementary education student at Montana State University.

The only income of the parties was passive. Husband received approximately $913.15 a month in retirement benefits. He also worked odd-jobs as a handyman. Pursuant to a stipulation entered into pending dissolution of the marriage, wife received $200 a month maintenance, $375 a month rental income from the parties’ California home and $251 a month from a ranch mortgage, for a total of $821 a month. The trial judge later found the expenses of each party to be approximately $1000 a month.

Following the hearing and husband’s petition to amend, the trial judge divided the marital estate as follows:

ITEM HUSBAND WIFE

California Residence $ 50,000.00

Ponderosa Pines Property $ 12,000.00

Mobile Home $ 8,700.00

Mobile Home Furnishings $ 750.00

Coachman Trailer $ 6,500.00

Subaru $ 850.00

Chevy Pickup $ 2,200.00

Ranch Mortgage $ 28,500.00

Alliance Stock $ 1,000.00

K-Mart Stock $ 3,497.00

Tools $ 1,500.00

NASA Retirement (70%) $133,500.00

NASA Retirement (30%) $ 57,331.00

TOTAL $155,700.00 $150,628.00

Further, husband was ordered to pay $150 a month to wife as maintenance until March of 1987 or her graduation from college, whichever occurs first.

The amount of monthly payments as a result of the division of the parties’ assets was determined by the trial judge to be $926 to wife and $700 to husband. Husband disagrees, stating that the judge failed to include wife’s maintenance award of $150. Therefore, husband alleges, the monthly payments were actually $1076 to wife and $550 to husband.

Maintenance is an award separate and distinct from the division of marital assets. See Sections 40-4-202 and -203, MCA. Granted, the amount of marital property awarded is to be considered in awarding maintenance. Section 40-4-203(2)(a), MCA. Vivian v. Vivian (1978), 178 Mont. 341, 345, 583 P.2d 1072, 1075. However, wife will receive no maintenance payments after March 1987. The payments are merely a temporary device, established to assist wife in her efforts to support herself. Maintenance for this purpose is clearly permissible. Section 40-4-203(2) (b), MCA. Peckenpaugh v. Peckenpaugh (1982), 201 Mont. 314, 319, 655 P.2d 144, 146. In light of wife’s devotion of 35 years of her life to husband and their family and wife’s efforts to become self-supporting, the maintenance award is certainly not excessive. Nor is it of such magnitude to warrant diminishment of wife’s portion of the marital estate.

Husband also alleges error in the trial judge’s decision to award wife 30% of husband’s retirement benefits. Again, we find no error. Husband accumulated his retirement benefits while married to wife. At the same time, wife was foregoing employment, and the attendant retirement benefits, to raise the family and care for husband. Wife will have been in the work-force for less than ten years when she reaches retirement age. Her retirement benefits will therefore be minuscule. Her past contributions to the family and to husband entitle her to share in husband’s retirement security.

Absent a clear abuse of discretion by the trial judge in applying the relevant factors of Sections 40-4-202 and -203, MCA, we will not disturb the trial judge’s findings, conclusions and judgment. Reese v. Reese (1979), 185 Mont. 52, 55, 604 P.2d 326, 328. We find no abuse of discretion.

Affirmed.

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


author: MR. JUSTICE SHEEHY

text:
    The STATE OF MONTANA, Plaintiff and Respondent, .v ARNOLD YTTERDAHL, Defendant and Appellant.
    No. 86-31.
    Submitted on Briefs March 28, 1986.
    Decided July 15, 1986.
    721 P.2d 757.

      Nye & Meyer, Jerrold L. Nye, Billings, for defendant and appellant.
    Mike Greely, Atty. Gen., Patricia J. Schaeffer, Asst. Atty. Gen., Helena, John L. Pratt, Co. Atty., Roundup, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Appellant, Arnold Ytterdahl, appeals from the judgment of the District Court, Fourteenth Judicial District, County of Musselshell, affirming the judgment of the Justice Court of Musselshell County, finding Ytterdahl guilty of the offense of disorderly conduct in violation of Section 45-8-101(l)(g), MCA. We reverse and dismiss.

Prior to the incident described here, Musselshell County and Ytterdahl were parties to a civil action regarding an easement on Ytterdahl’s property. On May 9, 1985, a judgment was entered in that action. Thereafter, the Musselshell County Commissioners sent a letter to Ytterdahl, asking him to meet with them at 10:00 a.m. on May 20, 1985, to discuss issues and problems arising from the judgment entered in the easement action.

Ytterdahl came to the meeting as requested. Present at the meeting were the three county commissioners, the county attorney, the commissioner of public works, and Ytterdahl.

It appears that the easement was never discussed at the commissioners’ meeting. Ytterdahl arrived upset, because the county, without his permission, had bladed a roadway across his property to provide access to the fairgrounds during road repairs. The State contends that Ytterdahl was “discourteous, bordering on the irrational, and was hollering and screaming at the commissioners.” There is evidence to that effect. When the county attorney told the defendant he could initiate a lawsuit in regard to his new complaint of trespass, the defendant “mumbled a bad word,” got up, stomped out and slammed the door so hard that the glass in the room rattled. The commissioners then recessed their meeting to “get their feelings settled down” for a a period of 15 minutes. The District Court, in a bench trial for which the defendant waived a jury trial, determined that the defendant had violated the statute under which he was charged. The complaint filed in the Justice Court against Ytterdahl was that he had committed a misdemeanor, disorderly conduct, a violation of Section 45-8-101 (l)(g), MCA, in that he “knowingly disturbed the peace by disturbing or disrupting any lawful assembly or public meeting, namely, a county commissioner’s meeting, by getting up, storming out of the meeting, and slamming the door.”

The pertinent language of Section 45-8-101, MCA, follows:

“Disorderly conduct. (1) A person commits the offense of disorderly conduct if he knowingly disturbs the peace by:

“(g) disturbing or disrupting any lawful assembly or public meeting;”

Ytterdahl raises two issues for our review:

1. Whether Section 45-8-101(l)(g), MCA, is unconstitutionally vague;

2. Whether the evidence was sufficient to support Ytterdahl’s conviction.

With respect to the first issue, the State argues that Ytterdahl is barred from raising a question of the constitutionality of a statute because he failed to raise the issue in the District Court. The State relies on the provisions of Section 46-20-104(1), MCA, as supplemented by Section 46-20-702, MCA.

It is true that under Section 46-20-702, MCA, it is provided that no claim on appeal alleging an error affecting jurisdictional or constitutional rights may be noticed by us if the error was not objected to as provided in Section 46-20-104, MCA, unless certain conditions exist which are not pertinent here. While a question might be raised as to whether any appellant may be prevented on appeal from raising jurisdictional or constitutional questions, it is not necessary for us to face that problem here. Because Ytterdahl raises the issue of the sufficiency of the evidence, it is necessary for us to examine the provisions of Section 45-8-101(l)(g), MCA, as to its proper interpretation in the light of this case.

It is certain that from the provisions of our statute defining disorderly conduct, in this case, at least two conditions must be shown in the evidence; (1) that the defendant knowingly disturbed the peace; and, (2) that he disturbed it through disrupting a lawful assembly or public meeting.

The gravamen of the statute defining the offense is “knowingly disturbing the peace.” It is noted in Fischbach v. Ohio State Racing Commission (Oh.App. 1955), 147 N.E.2d 258, that in legal textbooks there is no classification known as “disturbing the peace” and that reference is always made to “breach of the peace.” Montana’s statute defining disorderly conduct appears to be a hybrid of the concepts of disorderly conduct and breach of the peace. It is stated in 12 Am.Jur.2d 664, Section 1:

“The cases generally agree that disorderly conduct is a broader term than breach of the peace, so that a person who commits a breach of the peace is necessarily guilty of disorderly conduct, but all disorderly conduct is not necessarily a breach of the peace. It should be noted that both breach of the peace and affray were offenses under the common law, whereas disorderly conduct, at least by that name, is not an offense of common-law origin, but one created by statute or ordinance.”

In the sense of the foregoing quoted paragraph, we seem to run contra to the general run of cases. Although disorderly conduct is in the general sense a broader term than breach of the peace, in Montana, under the statute, the crime of disorderly conduct is not committed, unless the person so acting, “knowingly disturbs the peace.” We hold that disturbing the peace is synonymous with breaching the peace.

To establish a misdemeanor under Section 45-8-101(l)(g), MCA, it is essential to show, as an element of the offense, a disturbance of public order and tranquillity by acts or conduct not merely amounting to unlawfulness, but tending to create public tumult and incite others to break the peace. 12 Am.Jur.2d 666, Section 4. The Restatement (Second) of Torts, Section 116, defines a breach of the peace as a public offense done by violence or one causing or likely to cause an immediate disturbance.

The evidence in this case fails to show that the acts of the defendant for which he was charged tended to create public tumult, or to incite others to break the peace, or that it caused an immediate disturbance by others.

There is another, more important reason, however, for holding that Ytterdahl, in the circumstances of this case, did not commit an offense. It is the necessity that we give a narrow judicial interpretation of criminal statutes affecting the right of speech in order to insure that they prohibit only speech which is not constitutionally protected. State v. John W. (Me.1980), 418 A.2d 1097, 14 A.L.R.4th 1238. As the Supreme Court of Maine pointed out, the interpretation of such a criminal statute must be restricted to the kind of speech that produces or is likely to produce a clear and present danger of the substantive evils that the state may constitutionally seek to prevent. See Schenck v. United States (1919), 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470; Annot., “Supreme Court’s Development of the Clear and Present Danger Rule,” 38 L.Ed.2d 835 (1974); Landmark Communications, Inc. v. Virginia (1978), 435 U.S. 829, 842, 98 S.Ct. 1535, 1543, 56 L.Ed.2d 1, 12.

The right of a citizen to protest an alleged unlawful act of his government is undoubted. His right of speech, even though distasteful, must also be unfettered unless the speech creates the evil of a breach of peace. In weighing, in this case, the necessity that we preserve Ytterdahl’s right of protest and right of free speech, in the circumstances here described, as against the interests of the State in preserving the peace, we hold that under the evidence here, the actual conduct of Ytterdahl was not sufficient to constitute the offense of disorderly conduct.

Accordingly, the judgment and conviction of the defendant herein is reversed and the cause is remanded to the District Court with instructions to dismiss the cause.

MR. JUSTICES HUNT, WEBER, GULBRANDSON and MORRISON concur.


author: MR. JUSTICE HARRISON

text:
    DIVERSIFIED REALTY, INC., a Montana corporation, Plaintiff and Appellant, v. MARTHA E. HOLENSTEIN, Individually and as Personal Representative of the Estate of Paul Holenstein; Alois G. Holenstein, Rudy E. Endresse, Leo Gilbert, Metals Building, Inc., and Down Town Stamp, Inc., Defendants and Respondents.
    No. 86-50.
    Submitted on Briefs April 17, 1986.
    Decided July 15, 1986.
    721 P.2d 752.
    Christopher G. Miller, Butte, for plaintiff and appellant.
    Burgess, Joyce & Whelan, Thomas F. Joyce, Earl Genzberger, Butte, for defendants and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal by the plaintiff of an order of the Silver Bow County District Court, the Honorable Arnold Olsen presiding, granting the defendants’ motion to dismiss the plaintiff’s action for failure to prosecute. We affirm.

The facts of this case are undisputed by the parties.

Diversified Realty, Inc. (hereinafter “Diversified”) brought this action on March 9, 1977, against the defendants, most of whom were formerly directors of Diversified Realty. The complaint sought damages against the defendants for losses incurred by Diversified as a result of acts of alleged mismanagement and a breach of fiduciary duties by the defendants. The complaint also alleged that the corporate defendants, Metal Buildings, Inc. and Downtown Stamp, Inc., had benefited from the improper actions of the individual defendants. On July 16, 1979, the defendants filed their answers and counterclaims.

On July 17, 1979, John Peterson, Diversified’s original counsel in this matter, withdrew from the case. Thereafter, Robert Emmons was substituted as counsel for Diversified.

On January 12, 1982, a notice of the District Court’s intention to dismiss Diversified’s case without prejudice was mailed to counselor Emmons. This notice advised counselor Emmons that the trial court would dismiss Diversified’s case without prejudice for lack of any activity within a one year period unless good cause could be shown. Pursuant to this notice and local court rules, Diversified’s case was ordered dismissed without prejudice on March 9, 1982. On April 2, 1982, counselor Emmons filed a motion to reinstate Diversified’s action. As grounds for reinstatement, counselor Emmons advised the trial court that he had not received the notice of intention to dismiss. A hearing on this motion was held and on November 9, 1982, the trial court vacated its previous order and reinstated Diversified’s case.

It is also important to note that in the trial court’s order reinstating Diversified’s action, it specifically ordered counsel to proceed with “all diligence to bring the matter on for trial.”

On January 21, 1983, Mr. Emmons withdrew as counsel and Scott Radford was substituted as new counsel for Diversified. No further action was taken on the case until June 19, 1985, when Mr. Radford withdrew as counsel for Diversified. Christopher Miller was thereafter substituted as new counsel for Diversified on June 28, 1985 (Diversified’s fourth counsel in this matter), and he immediately scheduled the depositions of some of the defendants on July 31, 1985. The deposition date was later vacated by agreement of counsel and reset for August 27, 1985.

On August 22, 1985, the defendants moved to dismiss Diversified’s case for failure to prosecute pursuant to Rule 41(b), M.R.Civ.P. A hearing was held and on November 19, 1985, the trial court found that since more than eight years had elapsed since the institution of the case, and also since Diversified had made no effort to prosecute the matter, the case should be dismissed with prejudice. From this order of the trial court, Diversified appeals.

Diversified now basically presents the following issue for review by this Court: Whether the District Court erred by granting the defendants’ motion to dismiss for failure to prosecute.

A motion to dismiss an action for failure to prosecute is governed by Rule 41(b) of the M.R.Civ.P, which provides in pertinent part:

“For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.”

Diversified strongly relies on the case of Brymerski v. City of Great Falls (1981), 195 Mont. 428, 636 P.2d 846, to support its position that the trial court erred in granting the defendant’s motion to dismiss for failure to prosecute. Diversified contends that although Brymerski states it is within the sound discretion of the trial court to dismiss an action for failure to prosecute, and its decision will not be overturned absent a clear showing of an abuse of discretion, Brymerski also states that the trial court’s discretion is not without bounds. In the Brymerski decision, Diversified argues, this Court held that where the plaintiffs had resumed prosecution of their action prior to the time a motion to dismiss was filed by the defendants, the motion should be denied.

“We adopt the rule that a motion to dismiss for failure to prosecute will not be granted if the plaintiff is diligently prosecuting his claim at the time the motion is filed, even if at some earlier time the plaintiff may have failed to act with due diligence. (Emphasis added.)”

Brymerski, 636 P.2d at 848-849.

As applied to the instant case, Diversified argues it resumed prosecution of its claim on June 28, 1985, when its present counsel, Chris Miller, scheduled the depositions of some of the defendants. Diversified notes that defendants’ motion to dismiss was filed on August 22, 1985, nearly two months after counselor Miller had originally scheduled the depositions. Under the rule of the Brymerski case, Diversified argues, the defendants’ motion to dismiss should be denied. We disagree.

Under the arguments presented in its briefs, Diversified would have this Court interpret the Brymerski decision to mean that anytime a plaintiff begins discovery (however modest) prior to the time a motion to dismiss for failure to prosecute is filed, all prior dilatory conduct (however great) is excused and the motion to dismiss should be denied. Specifically, the argument of Diversified is that since it scheduled the depositions of the defendants before they filed their motion to dismiss, its prior dilatory conduct is excused and, therefore, the motion to dismiss should be denied. We hold the Brymerski decision does not stand for such a proposition. Rather, Brymerski makes the point that where a plaintiff has “actively” resumed the prosecution of his case, the policy for resolving the case on its merits is more persuasive than the policy of Rule 41(b) which favors the speedy administration of justice. As this Court in Brymerski stated:

“If a plaintiff has actively resumed the prosecution of a case, the policy favoring the resolution of a case on its merits is more compelling than the policy underlying Rule 41(b) which is to prevent unreasonable delays.” (Emphasis added.)

Brymerski, 636 P.2d at 849.

There is, therefore, no hard and fast rule that a plaintiff may cure any defect arising from delay by beginning discovery and consequently avoiding the impact of Rule 41(b). Instead, the trial court has the discretion to examine the circumstances of each particular case and then determine whether the motion to dismiss for failure to prosecute should be granted. When exercising its discretion, the trial court should observe the general rules quoted in Brymerski above and should also determine whether the key words from these quotes are present: whether the plaintiff was “diligently” or “actively” prosecuting his claim at the time the motion to dismiss was filed.

In the instant case, the trial court determined that Diversified was not “diligently” or “actively” prosecuting its claim at the time the defendants filed their motion to dismiss. The court noted that although Diversified had scheduled some depositions approximately two months before the defendants filed their motion to dismiss, this activity by Diversified did not amount to a diligent effort to prosecute its case because this was Diversified’s first movement on the case since it was filed some eight years earlier. The trial court was also undoubtedly influenced by the fact that Diversified ignored the language of one of its earlier orders. As explained in the facts section of this opinion, the trial court issued an order on November 9, 1982, which reinstated Diversified’s case after it had been dismissed without prejudice for lack of any activity within a one year period. In reinstating Diversified’s case, the trial court specifically ordered counsel to act with “all diligence to bring the matter on for trial.” Diversified essentially ignored this earlier order because 2Vi years (November 9, 1982 to June 28, 1985) elapsed before Diversified did anything to ready its case for trial. The record indicates the trial court was well justified in concluding that the circumstances of the instant case did not fall within the scope of the Brymerski decision.

It should also be noted that Diversified offers no reasonable excuse for its delay in the prosecution of its case. See, Chicago Title Insurance Company v. Wheat (Mont. 1985), [216 Mont. 98,] 699 P.2d 597, 42 St.Rep. 671. Although Diversified, as it suggests, may have been the victim of inadvertence and mistake on the part of its numerous attorneys, it was still at least partially responsible for the progress of its case over an eight year period. Diversified cannot obtain relief, however unintentional, from its own lack of concern over such an extended period of time.

We find the trial court did not abuse its discretion by granting the defendants’ motion to dismiss for failure to prosecute.

The judgment of the District Court is affirmed.

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


text:
    JAMES P. ROBERTS, et ux., Plaintiffs and Respondents, v. MISSION VALLEY CONCRETE INDUSTRIES, INC., a Montana corporation, Defendant and Appellant.
    No. 84-386.
    Submitted on Briefs May 9, 1986.
    Decided July 17, 1986.
    721 P.2d 355.

      French, Mercer, Grainey & Duckworth, John A. Mercer, Poison, for appellant.
    Terry Wallace, Missoula, for plaintiffs and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from a judgment issued by the District Court, Fourth Judicial District, in and for Lake County, Montana. After a bench trial, the Hon. James B. Wheelis awarded plaintiff damages, including punitive damages and attorney fees. We affirm in part and reverse in part.

In 1979, Roberts and Mission Valley Concrete, through its vice-president, Warren Harding, entered into a written contract for the modification of three barns on Roberts’ property near St. Ignatius, Montana, into so-called water-flush barn systems for raising hogs. A sewage lagoon was to be constructed. A schematic drawing of the proposed lagoon was prepared by the Soil Conservation Service. Roberts designed the barns. He selected Harding’s company to do the work by looking in the telephone book for area concrete dealers.

Harding had built hog barns before. He did not have experience constructing water-flush hog barns, however. The two men discussed Roberts’ diagram and Harding indicated he could do the job.

A major source of contention between Roberts and Mission Valley concerns the construction of the flush system. The theory behind the system is that gutters allow the hogs’ waste to be flushed out of the barns by use of water which partially dissolves the waste and moves it down the gutter to sumps where it is then pumped into a lagoon. The plans which Roberts gave to Harding called for the slope of the gutters to be 3 inches over the 75 foot length of the gutters. Bob Atkinson, the job superintendent, increased the slope to almost 20 inches over the 75 foot length of the gutters. Consequently, the water gushed down the gutters, and rather than dissolving the waste, merely rushed over it.

The inside of the gutters was not smooth, resulting in high spots and low spots where water and waste “pool” instead of flowing. Atkinson attempted to make the gutter smooth by applying grout, but did not finish the grouting work. The freezing and thawing of the waste and water has eliminated most of the grout which was applied. The floor of the gutters has fallen away from the walls causing the gutters to leak rather than holding the flush water for two to three days as Roberts intended. Roberts testified the system does not work at all — that he spends two hours a week on each gutter, hosing out the solids.

No reinforcing steel was put in the barns’ floors or under the gutters. Flush water flows under slabs of the barns, causing increased cracking. At least one sump has separated from a side wall.

The sewage lagoon does not have the agreed capacity. Roberts must pump it out every three months instead of twice yearly as would be necessary had it been built according to specifications.

When the job was completed, Mission Valley billed Roberts $9,505.00. Roberts paid $7,000.00, testifying he believed that was all he owed. Mission Valley credited Roberts $174.80 for the rebar (reinforcing steel) which was left out of the construction and then filed a lien against him for $2,330.20 for the balance of the bill.

Roberts filed an amended complaint alleging fraud and misrepresentation and asking for damages. The second count of the complaint alleged Mission Valley deliberately and maliciously asserted a fraudulent mechanic’s lien against his property. Following a bench trial, the court found for Roberts and awarded damages including punitive damages and attorney fees. Mission Valley appeals.

Three issues are presented for review:

1. Whether the findings of fact, conclusions of law, and judgment are supported by substantial credible evidence.

2. Whether attorney fees may be awarded where there is neither statutory authority nor an agreement between the parties regarding attorney fees.

3. Whether representations constitute fraud where there is no finding that the party making the representations knew they were false at the time they were being made.

We will consider the issue of fraud first. The statutory definition of fraud is found at Section 28-2-405, MCA:

“Actual fraud, within the meaning of this part, consists in any of the following acts committed by a party to the contract or with his connivance with intent to deceive another party thereto or to induce him to enter into the contract:

“(1) the suggestion as a fact of that which is not true by one who does not believe it to be true;

“(2) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;

“(3) the suppression of that which is true by one having knowledge or belief of the fact;

“(4) a promise made without any intention of performing it; or

“(5) any other act fitted to deceive”.

Fraud is more than merely making a promise which the promisor fails to keep. Svennungsen v. Svennungsen (1974), 165 Mont. 161, 169, 527 P.2d 640, 644; Gallatin Trust & Savings Bank v. Henke (1969), 154 Mont. 170, 175, 461 P.2d 448, 450. Actionable fraud requires that one prove the maker of the promise had no intention of performing it when he made it. Howe v. Messimer (1929), 84 Mont. 304, 313-314, 275 P. 281, 283.

Roberts claims he was defrauded by Mission Valley. The record shows that Roberts contacted Mission Valley about modifying three barns on his property to be used for raising hogs. He had designed what he wanted and showed the design to Warren Harding. Harding had had experience in constructing hog barns, but not the water-flush system Roberts had designed. Nevertheless, Harding represented to Roberts he could do what Roberts wanted.

Harding testified he could do the concrete work to Roberts’ specifications, that he intended to do a good job, and that he did do a good job. He held himself out as capable of doing work in a skilled, professional manner. It is clear his performance was not consistent with professional standards.

Rule 52(a), M.R.Civ.P., says in pertinent part:

“In all actions tried upon the facts without a jury . . ., the court shall find facts specially and state separately its conclusions of law thereon, . . . Findings of fact shall not be set aside unless clearly erroneous, . . .”

This Court’s function in reviewing findings of fact in a civil action tried by the district court without a jury is not to substitute its judgment in place of the trier of facts but rather it “is confined to determining whether there is substantial credible evidence to support the findings of fact and conclusions of law . . .” In determining whether the trial court’s findings are supported by substantial evidence, this Court must view the evidence in the light most favorable to the prevailing party [citing cases]. Cameron v. Cameron (1978), 179 Mont. 219, 227-228, 587 P.2d 939, 944.

There is testimony showing Harding knowingly made false rep-reservations that were material, and promises he knew he could not keep. Roberts testified that at the time he entered into the agreement with Mission Valley he had “total faith in Warren to be able to do the job that he said he was going to do.” Roberts had a right to rely on Harding, and was injured because of this reliance. This being so, the court is not in error to find fraud.

There is conflicting evidence in the findings. The findings, however, must be clearly erroneous to be set aside. Rule 52, M.R.Civ.P. We find no clear error constituting abuse of discretion, further the district court has the benefit of seeing and hearing witnesses testify.

Roberts claims he is entitled to attorney’s fees. It long has been the rule in Montana that absent either statutory authority or agreement between the parties, attorney’s fees are not awarded. Bossard v. Sullivan (Mont. 1983), [206 Mont. 392,] 670 P.2d 1389, 1391, 40 St.Rep. 1733, 1735. Roberts is not entitled to attorney’s fees.

The judgment of the District Court awarding damages is affirmed, and reversed as to attorney’s fees.

MR. JUSTICES SHEEHY, WEBER, HUNT, MORRISON and GULBRANDSON and the HON. HENRY C. LOBLE, District Judge, sitting for MR. CHIEF JUSTICE TURNAGE, concur.


text:
    AUDREY D. NOONE, Plaintiff and Petitioner, v. ROBERT RAYMOND FINK, Wallace J. Payer and Thomas J. Noone, Defendants and Respondents.
    No. 85-601.
    Submitted on Briefs March 21, 1986.
    Decided July 17, 1986.
    721 P.2d 1275.
    Sandall, Cavan, Smith, Howard & Grubbs, W. Corbin Howard, Billings, for plaintiff and petitioner.
    Alexander & Baucus, J. David Slovak, Great Falls, for defendants and respondents Robert Raymond Fink and Wallace J. Payer.

      Moulton, Bellingham, Longo & Mather, Douglas James, Billings, for defendant and respondent Thomas J. Noone.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

This is an original proceeding for a declaratory judgment on two certified questions from the United States District Court sitting in Billings.

There are two questions certified from the United States District Court: first, does the doctrine of interspousal tort immunity bar the claim of a wife-passenger against her husband-driver for her husband’s negligence in the operation of a motor vehicle? Second, if so, does the doctrine of interspousal tort immunity bar the cross-claims of the husband’s codefendants and joint tortfeasors against the defendant husband for indemnity and/or contribution?

Audrey and Thomas Noone were married in 1974. They love each other and plan on remaining married. Both are employed and commingle their incomes in a single bank account. Audrey Noone was injured in a car accident near Broadus in 1982. Audrey was a passenger in a Bronco being driven by her husband, defendant Thomas Noone. As the Bronco attempted to make a left turn, a following truck attempted to pass and the vehicles collided. The truck was owned by defendant Wallace Payer and driven by defendant Robert Fink.

This personal injury action is maintained by Audrey Noone against defendants, Payer, Fink, Noone. Audrey Noone alleges the accident and her injuries were caused by the joint negligence of each defendant. Fink and Payer have denied any negligence on their part and cross-claimed against defendant Noone seeking indemnity and/or contribution. Defendant Noone has also denied any negligence on his part and cross-claimed against Fink and Payer seeking indemnity and/or contribution.

Defendant Noone, who is being represented by his insurance company, filed a motion for summary judgment based on the doctrine of interspousal tort immunity. Fink, Payer, and Audrey Noone opposed the motion. At the conclusion of a hearing on the motion for summary judgment, the Federal District Court agreed to certify the questions to this Court.

The first question certified to us is whether the doctrine of interspousal tort immunity bars the claim of a wife-passenger against her husband-driver for negligence in the operation of a motor vehicle. In Miller v. Fallon County, et al. (Mont.1986) [222 Mont. 214,] 721 P.2d 342, [43 St. Rep. 1185] we abolished the defense of inter-spousal tort immunity because the historical reasons for that immunity are no longer valid. Therefore the doctrine no longer operates as a bar to negligence claims against spouses.

The second question certified to us is whether the doctrine of interspousal tort immunity bars the cross-claims of the husband’s codefendants and joint tortfeasors against the defendant husband for indemnity and/or contribution. Since we have abrogated the doctrine of interspousal tort immunity, the contribution statute, Section 27-1-703, MCA, controls. It states:

“Whenever the negligence of any party in any action is an issue, each party against whom recovery may be allowed is jointly and severally liable for the amount that may be awarded to the claimant but has the right of contribution from any other person whose negligence may have contributed as a proximate cause to the injury complained of.”

Therefore the husband’s co-defendants and joint tortfeasors may cross-claim against him for indemnity and/or contribution, under Section 27-1-703, MCA. However, we make no comment as to the applicability of indemnity theories in automobile accident cases. See Panasuk v. Seaton (U.S.D.C. Mont. 1968), 277 F.Supp. 979 and Consolidated Freightways Corp. of Del. v. Osier (1979), 185 Mont. 439, 605 P.2d 1076.

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


text:
    In the Matter of the ESTATE OF JAMES C. LAWSON, Deceased.
    No. 85-611.
    Submitted on Briefs May 9, 1986.
    Decided July 17, 1986.
    721 P.2d 760.

      T.R. Halvorson, Sidney, for appellant.
    Torger S. Oaas, Lewistown, for respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

The estate of James C. Lawson appeals from the Findings of Fact, Conclusions of Law and Order of the District Court of the Seventh Judicial District Court of the Seventh Judicial District, Richland County which ordered the estate to pay a homestead allowance of $20,000 and a family allowance of $500'per month to Karen Lawson. We affirm.

James Lawson died on January 3, 1985. The estate has stipulated and Karen Lawson testified that she was James Lawson’s common-law spouse. Both parties were living in Montana at the time of his death. They had no children of the marriage.

James Lawson left a will which was informally probated in Rich-land County. Pursuant to his will, his niece Merrie Gangstad was appointed personal representative.

Karen Lawson was at that time living on their ranch in Richland County. When James died, Karen received approximately $150,000 in cash and certificates of deposit that had been held in joint tenancy. She used the money to buy a ranch in Joliet. When she left the Richland property, she allegedly took several household and ranch items which she claimed were hers, her fathers, or gifts.

Karen Lawson as surviving spouse filed a petition for homestead, exempt property, and family allowances. She also filed a petition seeking to have herself declared as sole owner of the property she had removed from the ranch.

After a hearing on petition, the District Court entered findings of fact, conclusions of law and an order which awarded $20,000 for the homestead allowance, a family allowance of $500 per month as of January 3, 1985 and an exempt property allowance of $3,500. The District Court deferred the selection of the items of exempt property until all issues in the case are settled. The District Court stated:

“The homestead allowance and family allowance of Karen Lawson should not be offset by any of the claims of the estate against Karen Lawson. The estate has failed to show that it would be irreparably harmed in the event that the allowances were granted to the widow prior to the disposition of the other issues in later legal proceedings. The estate has further failed to show any legal right to an offset. This question is reserved.”

As a first issue, the estate of James Lawson contends the defenses of setoff, satisfaction, payment and abandonment should be available against statutory claims of homestead, family, and exempt property allowances.

The homestead, exempt property, and family allowances are allowed by Sections 72-2-801, 802, and 803, MCA, respectively, Section 72-2-801, MCA, states:

“A surviving spouse of a decedent who was domiciled in this state is entitled to a homestead allowance of $20,000 .... The homestead allowance is exempt from and has priority over all claims against the estate. Homestead allowance is in addition to any share passing to the surviving spouse or minor or dependent child by the will of the decedent unless otherwise provided, by intestate succession, or by way of elective share.”

Section 72-2-802, MCA, states:

“In addition to the homestead allowance, the surviving spouse of a decedent who was domiciled in this state is entitled from the estate to value not exceeding $3,500 in excess of any security interests therein in household furniture, automobiles, furnishings, appliances, and personal effects .... These rights are in addition to any benefit or share passing to the surviving spouse or children by the will of the decedent unless otherwise provided, by intestate succession, or by way of elective share.”

Section 72-2-803, MCA, states:

“In addition to the right to homestead allowance and exempt property, if the decedent was domiciled in this state, the surviving spouse and minor children whom the decedent was obligated to support and children who were in fact being supported by him are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance may not continue for longer than 1 year if the estate is inadequate to discharge allowed claims. The allowance may be paid as a lump sum or in periodic installments.

“The family allowance is exempt from and has priority over all claims but not over the homestead allowance.

“The family allowance is not chargeable against any benefit or share passing to the surviving spouse or children by the will of the decedent unless otherwise provided, by intestate succession, or by way of elective share.

“The death of any person entitled to family allowance terminates his right to allowances not yet paid.”

The purpose of the allowances is to ensure that a surviving spouse is not left penniless and abandoned by the death of a spouse. The allowances are not designed to support the family until they share in the estate, but irrespective of whether they do or do not share. 31 Am.Jur.2d Executors and Administrators Section 324. The allowances are payable out of the assets of estate and are not charged against the widow’s share. Section 72-2-803, MCA. Because of the nature of allowances provided for the family, defenses such as offset, satisfaction, payment, or abandonment if they could be proved, should not be allowed as a matter of policy. Matter of Estate of Dunlap (1982), 199 Mont. 488, 649 P.2d 1303; Matter of Estate of Merkel (Mont. 1980), 618 P.2d 872, 37 St.Rep. 1782.

The second issue raised by appellant is whether irreparable harm is a prerequisite to defenses of setoff, satisfaction, and payment. This issue has been rendered moot by our decision on the first issue.

Third, the estate accuses the District Court of using the unresolved issues presented by the amended petition and amended counterpetition as a basis for ruling against the estate while refusing to do anything to make the issues ready for trial. The estate claims prejudice because of the dilatory handling of the estate by the court.

The District Court correctly refused to determine if the estate was legally entitled to a set-off until after the ownership of the property had been determined, and the property had been valued by an appraiser. The record shows that the estate itself has not attempted to resolve the issues in this case in an expeditious manner.

The fourth issue raised by appellants is whether the estate was denied a fair hearing by what it terms as repeated errors in setting the petition for hearing. The estate complains that it was not given a 14 day notice of the hearing on the petition for allowances as required by Section 72-1-301, MCA. The hearing was rescheduled by the parties or the District Court six times before the hearing was held, largely due to an extremely busy District Court schedule. Appellant claims that some of these notices were illegally short. However, the record shows the appellant did not object to the notices or request continuances at the District Court level and it raises the issue for the first time on appeal. This Court will not review issues raised for the first time on appeal. In re Marriage of Glass (Mont. 1985), [215 Mont. 248,] 697 P.2d 976, 42 St.Rep. 328; Morse v. Cremer (1982), 200 Mont. 71, 647 P.2d 358.

Last, appellant takes issue with this finding of the District Court:

“There was testimony concerning the assets taken and allegedly taken from the estate by Karen Lawson. Inasmuch as all of the evidence was self-serving and not from an impartial expert witness, the Court will reserve ruling on the question of entitlement to an offset as to any offset (sic) until conclusion of the case.”

Appellant contends a self-serving declaration is a statement made out of court that is favorable to the interests of the declarant, but does not include testimony of a witness in court. The estate contends the judge ignored the estate’s proof which consisted of cross examination of Karen Lawson as to the value of the assets on the Lawson Property. The estate contends the District Court acted arbitrarily and capriciously and moved to disqualify the presiding judge for cause.

A reading of the findings of fact shows that the District Court judge refused to rule on the value of personal property in the estate because no testimony from an impartial expert witness had been presented. The only testimony presented was that of Karen Lawson which was indeed self serving. The District Court acted properly on the issues before it, and appellant’s allegations of prejudice are baseless.

The findings of fact, conclusions of law and order of the District Court are affirmed.

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


author: MR. CHIEF JUSTICE TURNAGE

text:
    HOLMES & TURNER, a Montana partnership, Plaintiff and Respondent, v. STEER-IN, a Montana corporation, Defendant and Appellant.
    No. 86-39.
    Submitted on Briefs May 30, 1986.
    Decided July 17, 1986.
    721 P.2d 1276.
    Philip P. McGimpsey, Pierre L. Bacheller, Billings, for defendant and appellant.
    Kirwan & Barrett, Stephen M. Barrett, Bozeman, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Respondent, Holmes & Turner, filed suit in the District Court of the Eighteenth Judicial District, Gallatin County to collect from appellant, Steer-In, for services rendered. This is an appeal from an order granting summary judgment in favor of respondent issued after appellant failed to answer appellant’s requests for admission.

Steer-In seeks to have this Court relieve it of the effect of Rule 36, M.R.Civ.P., which deems matters in requests for admission that are not responded to as admitted and conclusively established. Steer-In argues that it had already denied the matter in question in its answer to the complaint so that it should not be required to deny the matter again.

We affirm.

Steer-In is a Montana corporation which operates a restaurant and lounge near Three Forks, Montana. Holmes & Turner is a Bozeman accounting firm. Steer-In hired Holmes & Turner for services in 1980 and 1981. Steer-In did not pay Holmes & Turner for the services.

On January 19, 1982, Holmes & Turner filed suit against Steer-In to collect $6,335 for the accounting services. The sole factual allegation in the complaint is as follows:

“Defendants, and each of them, owe plaintiff SIX THOUSAND THREE HUNDRED THIRTY-FIVE DOLLARS ($6,335.00) for accounting services rendered by plaintiff to defendants, and each of them, between July 15, 1980, and January 5, 1981, with interest at the rate of eighteen percent (18%) per annum.”

Steer-In denied this allegation and presented the affirmative defense of failure of consideration in its answer to the complaint. The answer also raised three counterclaims alleging that Holmes & Turner negligently designed, implemented and maintained the Steer-In’s accounting system. Steer-In requested $210,000 in compensatory damages and $500,000 in punitive damages. On April 16, 1984, the new owner of Steer-in signed a stipulation of dismissal of the counterclaims, and a court order dismissing the counterclaims with prejudice was issued on February 26, 1985.

Discovery lasted for an extended period. Finally, on February 6, 1985, the parties stipulated to a termination of interrogatories by which interrogatories prior to that date could go unanswered without penalty. Then, on February 7, 1985, Holmes & Turner made a request for admission as follows:

“Admit that the Defendant Steer-In owes Plaintiff the sum of $6,335 plus interest at the rate of 18% per annum for accounting services rendered by Plaintiff to Defendant between July 15, 1980 and January 5, 1981.”

Holmes & Turner also made another request contingent on Steer-In’s denial of the admission. That request was as follows:

“If the answer to the preceding request for admission was negative please state the basis for the denial, what elements of the request for admission are specifically denied, what fees are owed from the Defendant to the Plaintiff for accounting services, and what basis exists in the form of affirmative defenses, offenses, or other charges that are alleged to reduce the accounting services set forth in the preceding interrogatory.”

No further requests were made.

On May 16, 1985, Holmes & Turner’s counsel wrote to counsel for Steer-In requesting a response to the request for admission and warning that a motion for summary judgment would follow if Steer-In did not respond. Steer-In did not respond. On July 19, 1985, Holmes & Turner moved for summary judgment. On October 29, 1985, the District Court issued an order that deemed Holmes and Turner’s request for admission as admitted by Steer-In’s failure to respond. With the matter in the admission deemed admitted, no issue of fact remained, so the order also granted summary judgment. Steer-In appeals.

Steer-In’s main argument has to do with the fact that Holmes and Turner’s request for admission matches the sole factual allegation in its complaint. Steer-In argues that since it already denied that allegation in its answer to the complaint, it should not be required to answer the same allegation in the request for admission. It would be, Steer-In argues, an exaltation of procedure over substance to order summary judgment where the pleadings clearly show an issue of fact. Steer-In’s brief also emphasizes the unnecessary increased burden and cost to clients created by procedural rules which require redundant pleadings.

Rule 36, M.R.Civ.P., and precedent are such that summary judgment was appropriate. Rule 36(a) provides that a request for admission is deemed admitted unless answered or objected to within thirty days after service of the request. Rule 36(a), M.R.Civ.P., provides in part:

. . The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting admission a written answer or objection addressed to the matter, . .

Then, Rule 36(b), M.R.Civ.P., provides in pertinent part:

“Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission . . . .”

Thus, by Rule 36(a), Steer-In had thirty days after it was served with Holmes & Turner’s request to answer or object to the request before the request was deemed admitted. After thirty days, Steer-In had the option of moving to withdraw or amend the admission under Rule 36(b).

Over eight months passed between the time Steer-In was served with the request and when the court deemed the request admitted. In this period, Steer-In did not even attempt to exercise any of its options under Rule 36. The court therefore followed the mandate in Rule 36 and deemed the request admitted. Once the request was admitted, there could no longer be any issues of fact, and the court ordered summary judgment pursuant to Rule 56, M.R.Civ.P.

We have previously addressed the issue of the propriety of summary judgment where the basis is a failure to respond to requests for admissions. See Morast v. Auble (1974), 164 Mont. 100, 519 P.2d 157. In Morast, 519 P.2d at 160, we followed 8 Wright & Miller, Federal Practice and Procedure: Civil Section 2264, which states:

“Admissions obtained by use of Rule 36 may show that there is no genuine issue as to any material fact and justify the entry of summary judgment under Rule 56.”

This rule states precisely what happened in the case at bar. As in Morast, we will follow that rule here. We hold that the District Court properly issued summary judgment based on a fact deemed established by the operation of Rule 36, M.R.Civ.P. We will further comment that the very purpose of Rule 36 is to lessen the time of trial and ultimately to set the stage for summary judgment.

Steer-In argues that it should not be required to respond to the request because its answer to the complaint contains a denial of an identical allegation. We disagree.

Holmes & Turner made its request for admission on February 7, 1985. Steer-In’s answer to the complaint is dated March 24,1983. In this period of nearly two years, Steer-In acquired a new owner and all three of its counter-claims were dismissed with prejudice. Under these circumstances, Holmes & Turner could suspect that Steer-In had changed its position on the factual allegation or the theory of its defense. A Rule 36, M.R.Civ.P., request for admission was the ideal and proper way for Holmes & Turner to determine if Steer-In was holding to its original position. Steer-In could have easily handled the matter by reaffirming its prior positions.

We do not believe Holmes & Turner was playing a “procedural chess game” with Steer-In as Steer-In alleges. Moreover, if Steer-In thought Holmes & Turner was “playing games” with its request, it could have objected to the request. If the prior answer did in fact answer the request for admission, the objection would have satisfied Steer-In’s responsibility under Rule 36. Instead, Steer-In made no response at all.

Whether or not Steer-In agrees with the effect of Rule 36, it is bound by it. Steer-In calls the effect of Rule 36 in this case an “exaltation of procedure over substance.” We think that it is Steer-In that did the “exalting” by ignoring the rule. If Steer-In had responded as required by Rule 36, the substance of the case could have been preserved.

Steer-In complains about the cost and burden of redundant pleadings. We can see little cost or burden to Steer-In in responding to Holmes & Turner’s request. Steer-In could have simply referred Holmes & Turner to the denial and affirmative defense in the original answer, or as stated earlier, it could have objected to the request as redundant. This minor burden is insufficient reason for us to undermine the operation and purpose of Rule 36.

The District Court’s order granting summary judgment is affirmed.

MR. JUSTICES WEBER, MORRISON, SHEEHY and HUNT concur.


text:
    In re the MARRIAGE OF MARGARET E. HURLEY, Petitioner/Appellee, and DENNIS P. HURLEY, Respondent/ Appellant.
    No. 86-41.
    Submitted on Briefs April 4, 1986.
    Decided July 17, 1986.
    721 P.2d 1279.

      Wright, Tolliver & Guthals, Kenneth D. Tolliver, Billings, for petitioner/appellee.
    Radovich Law Firm, Eric K. Hendricks, Billings, for respondent/ appellant.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Appellant, Dennis P. Hurley, appeals from the judgment of the District Court, Thirteenth Judicial District, County of Yellowstone, dissolving the parties’ marriage and apportioning the property and assets of their marital estate.

Margaret and Dennis Hurley were formerly married in 1962. In 1968, the parties adopted a child, Kevin Hurley, who was 17 years old and a senior at Billings Central Catholic High School at the time of the dissolution proceedings in the District Court. In 1970, the parties were legally divorced in the State of Minnesota. In the two years following their divorce, the parties occasionally resided together on an irregular basis, until early 1973, when Dennis asked Margaret to move to Corning, Iowa where he had secured employment the previous year. Margaret testified that she agreed to move to Iowa on the condition that they resume their marital relationship. Accordingly Margaret quit her job and sold her home in Minnesota to facilitate the move.

After moving to Iowa, Margaret resumed wearing her wedding rings and the couple held themselves out as husband and wife. In November, 1973, Dennis and Margaret purchased a home in Corning, Iowa. Margaret testified she contributed $12,500.00 toward the downpayment, that being the proceeds from the sale of her Minnesota home. Dennis produced two cancelled checks indicating that he contributed the sum of $2,500.00. The parties gave conflicting testimony regarding the total purchase price of the home, Margaret recalling the amount to be $42,500.00 and Dennis $40,500.00. The balance of the purchase price was financed by a mortgage in the sum of $28,000.00. The parties executed the mortgage as “Dennis P. Hurley and Margaret E. Hurley, Husband and Wife.”

For the years 1978-1981, Dennis prepared the family income taxes which he filed as “married-filing joint return,” naming Margaret as his wife and her occupation shown as “housewife.” Dennis denied that a common law marriage existed despite the fact that they held themselves out as married and despite the fact that he agreed he received “services that would be comparable or equivalent” to a wife. Based on the above evidence, the District Court concluded that the parties entered a common law marriage in April, 1973.

In 1981, the parties purchased a duplex in Eureka Springs, Arkansas, as an investment. The duplex was purchased under a contract for deed for the sum of $50,000.00, less a $20,000.00 downpayment. The record indicates the downpayment consisted of $14,000.00 in funds inherited by Dennis and $6,000.00 from the parties’ joint savings account.

In 1982, Dennis obtained employment in Billings, Montana. The parties and their son resided in Billings until April, 1984, when they separated. The record discloses, as the District Court found, that the parties held themselves out as husband and wife and maintained joint checking and savings accounts while in Billings.

During 1983, Dennis was employed by I.R.I. Research in Georgetown, Guyana. While employed by I.R.I. Research, in March of 1983, Dennis completed a form designating Margaret as his beneficiary for insurance purposes, indicating her relationship as “wife.”

In April 1984, Dennis disappeared from the Billings area. He later phoned Margaret from Las Vegas, Nevada, advising her that he had left a note with instructions in a post office box. The note instructed Margaret to take the funds from their joint checking and savings accounts to use to support herself and their son, and further advised that he would be living in Las Vegas.

At that time, Margaret withdrew $31,000.00 from the savings account leaving a balance of $13,994.00. She did not remove any funds from the joint checking account in which there was a balance of $22,605.00. At this time, Margaret also had access to a savings account in her own name, with a balance of $15,000.00 which sum was the accumulation of gifts received from her family, her childhood savings, and a small inheritance from her father’s estate.

Dennis returned to Billings a few days after he had phoned Margaret from Las Vegas and withdrew the sums remaining in the joint checking and savings accounts, totaling approximately $36,000.00.

In May, 1984, Dennis moved to Eureka Springs, Arkansas, and moved into one unit of the parties’ duplex, where he presently resides. Dennis is a college graduate with a degree in accounting, and is presently employed for the firm of George S. May as a management consultant. The record indicates that Dennis’ present earnings are approximately $1,700.00 per month. The record, however, also indicates that he has had an earning capacity of up to $4,000.00 per month.

In 1983 and 1984, Margaret attempted to establish a career in real estate in Billings, but earned only $2,300.00 in commissions. Thereafter, Margaret worked briefly as a receptionist from December, 1984, through February 1985, but has been unemployed since that time. Margaret, however, testified that she intends to attend a four-month paralegal training course in Denver, Colorado, to obtain marketable employment skills if she does not obtain suitable employment soon.

The District Court found that during the period of April 1973, up to the time of separation, the parties accumulated the following assets:

Assets at time of separation

Joint checking account $ 22,605.59

Joint saving account 40,949.00

Wife’s separate savings account 15,000.00

1981 Mercury Lynx 3,500.00

1974 Chrysler 500.00

IRA 10,000.00

Furniture 1,835.00

Arkansas Duplex 50,000.00

Stocks

3 shares Financial Corp. of America 120.00

6 shares Pfazier 120.00

162 shares Amfac 4,050.00

3 shares N.W. National 40,00

TOTAL $148,719.59

The District Court also found that the parties had accumulated the following liabilities at the time of trial:

Liabilities at time of trial

Mortgage of Arkansas Duplex $ 18,000.00

Mortgage of Billings House 40,000.00

TOTAL $ 62,000.00

Subsequent to the parties’ separation, Margaret purchased a home in Billings for $60,000.00. The “mortgage of Billings House” listed above represents the amount still owing on the $60,000 purchase price.

At the time the parties separated in April, 1984, Margaret had custody of the following assets:

Funds from joint savings account $ 31,000.00

Personal savings account 15,000.00

1981 Mercury Lynx 3,500.00

Furniture 1,835.00

TOTAL $ 51,335.00

Of the $31,000.00 from the parties’ joint savings account, Margaret used $16,500.00 of the savings as a downpayment on the Billings house. Further, Margaret testified that she had also expended a portion of the savings for living expenses for herself and the parties’ minor child, leaving a balance of $15,208.00 in savings and $1,424.66 in checking account funds.

The District Court also found that Dennis had custody of the following assets:

Funds from joint savings account $ 13,994.00

Funds from joint checking account 22,605.59

1974 Chrysler 500.00

IRA 10,000.00

Stocks-totaling 4,330.00

Arkansas duplex 50,000.00

TOTAL $101,429.59

Accordingly, the District Court allocated the assets and liabilities in the marital estate as follows:

Assets Value Wife Husband

Wife’s cash account balance $ 15,208.00 $15,208.00 $

Savings drawn by husband 13,994.00 13,994.00

Checking drawn by husband 22,605.59 22,605.59

1981 Mercury Lynx 3,500.00 3,500.00

1974 Chrysler 500.00 500.00

IRA 10,000.00 10,000.00

Furniture 1,835.00 1,835.00

Arkansas Duplex 50,000.00 50,000.00

Stocks 4,330.00 4,330.00

Billings house TOTAL ASSETS Liabilities 60,000.00 $181,972.59 60,000.00 $90,543.00 $91,429.59

Billings home mortgage $ 44,000.00 $44,000.00 $

Arkansas duplex 18,000.00 18,000.00

TOTAL LIABILITIES $ 62,000.00 $44,000.00 $18,000.00

Net Worth and Allocation $119,972.59 $46,543.00 $73,429.59

In addition, the District Court awarded Margaret $31,439.18 to be paid in installments of $5,000.00, the first payment due 30 days after entry of the decree and the balance in five equal annual installments commencing July 1, 1986, together with interest at 10% per annum from the date of trial. In awarding Margaret the cash sum, the District Court reasoned that: “In light of the husband’s superior earning capacity, the wife’s need for retraining in order to obtain suitable employment and the expense she will incur in educating the parties’ son, the Court finds it equitable to award her approximately 65% of the net marital estate.”

The District Court also noted that Dennis failed to account accurately for the marital assets he controlled since the separation, and that he testified to purchasing assets not shown on his Rule 32 affidavit. Specifically, Dennis failed to report income of $325.00 per month he receives for rental on one-half of the duplex in Arkansas.

The record also indicates that Dennis expended a large portion of the cash assets of the marriage. Of the $36,599.59 which he took from the parties joint checking and savings accounts, he retained only $15,350.00 at the time of trial. Dennis’ only explanation at trial for the dissipation of funds was the expense of transporting a woman whom he purportedly married, and her three children from Guyana, South America to the United States.

Dennis raises five issues for our review:

1. Whether the District Court erred in determining that a common law marriage had been established commencing April 1, 1973;

2. Whether the District Court’s adoption of Margaret’s Proposed Findings of Fact and Conclusions of Law was error;

3. Whether the District Court erred in failing to indicate the basis for the determination of the values of the marital estate when conflicting evidence of values was presented;

4. Whether the District Court erred in selecting the time valuation of the marital estate; and

5. Whether the District Court erred, in exercise of its discretion, by acting arbitrarily and without employment of conscientious judgment and by exceeding the bounds of reason in view of the circumstances.

Dennis first contends that the District Court erred in failing to explain whether its finding of a common law marriage was based on Montana or Iowa law because the parties were Iowa residents when the common law marriage was entered. Dennis further contends that the evidence does not support the conclusions that the parties entered a common law marriage under Iowa law. Margaret, however, contends that there was a valid common law marriage under the laws of both Montana and Iowa.

In Montana, in order for a common-law marriage to exist, the parties must be capable of consenting to the marriage; there must be a mutual and public assumption of the marriage relationship, cohabitation, and the marriage must take place immediately. In Re Sartain (Mont. 1984), [212 Mont. 206,] 686 P.2d 909, 912, 41 St.Rep. 1691, 1694; In Re McClelland (1975), 168 Mont. 160, 164, 541 P.2d 780, 783. In Iowa the elements necessary to establish a common law marriage are: 1. an intent and agreement praesenti to be married by both parties, 2. continuous cohabitation by the parties, and 3. a public declaration that the parties are husband and wife. In Re Marriage of Winegard (Iowa 1979), 278 N.W.2d 505, 510. Clearly, the elements required to establish a common law marriage in Iowa and Montana are substantively identical. We, therefore, hold as to Dennis’ first contention, that it was immaterial that the District Court did not state in its findings whether it found the existence of a common law marriage based on Montana or Iowa law. Because the parties were residents of Iowa, in April, 1973, however, when the alleged common law marriage was entered, we will look specifically to Iowa law to determine whether there was sufficient evidence in the record to support the District Court’s conclusion that the parties entered a common law marriage.

Specifically, Dennis argues that there is a lack of evidence of an agreement to be married in praesenti as required by Iowa law. In a separate opinion in In Re Marriage of Winegard (Iowa 1977), 257 N.W.2d 609, where the husband expressly denied the existence of an agreement to marry, the Supreme Court of Iowa stated:

“It is sufficient if the parties cohabitating intend present marriage, and it is immaterial how the intention is evidenced. The woman, indeed, may be entitled to marital rights if she intends present marriage, and the man does not, provided they cohabit and provided his conduct is such as to justify her in believing that he intends present marriage. 257 N.W.2d at 616.”

In upholding the finding in Winegard of a common law marriage, the Iowa Supreme Court permitted both direct and circumstantial proof of an agreement to be married in praesenti. Here, the evidence of the agreement to be married in praesenti is more than adequate and Dennis’ denial thereof is not controlling. Margaret testified on cross-examination as follows:

“Q. You stated earlier that there was an agreement to live as man and wife. Can you explain when that agreement was made? A. The agreement to live as man and wife, I was represented and introduced as his wife as soon as we started living together. But when I agreed to move to Corning, we moved as representing, I was again introduced as his wife. We purchased our home as husband and wife.

“Q. Can you point to an exact moment where this agreement was made? At some point, there was a decision to become man and wife. Can you tell me what that moment was? A. At the moment when I agreed to move to Corning.”

There being an abundance of evidence in the record establishing the other elements of an Iowa common law marriage, we hold the District Court did not err in finding the parties entered a common law marriage in April, 1973.

Dennis next contends that the District Court’s adoption of Margaret’s Proposed Findings of Fact and Conclusions of Law was error. It is well settled that the District Court should not rely too heavily on findings and conclusions submitted by the winning party, and reliance is too heavy when the findings are used to the exclusion of a consideration of the facts and the exercise of the Judge’s own judgment. In Re Marriage of Hunter (1982), 196 Mont. 235, 245-46, 639 P.2d 489, 495. Our ultimate test for adequacy of findings of fact is whether they are sufficiently comprehensive and pertinent to the issues to provide a basis for decision, and whether they are supported by the evidence presented. In Re Marriage of Wolfe (1983), 202 Mont. 454, 457-58, 659 P.2d 259, 261; In Re Marriage of Jensen (Mont. 1981), 631 P.2d 700, 703, 38 St.Rep. 1109, 1113. The findings in this case, which were adopted almost verbatim from Margaret’s proposed findings, do meet the above tests. The District Court’s findings of fact and conclusions of law are comprehensive and pertinent to the issues presented. Further, they are all supported by sufficient evidence in the record.

Dennis’ third contention is that the District Court erred by failing to indicate the basis for the determination of the values of the martial estate when conflicting evidence of values was presented. Specifically, Dennis contends that the District Court erred in valuing the parties’ personal property. At trial, Margaret testified that the parties’ personal property should be valued at $1,835.00. Margaret arrived at this amount by attaching a value to each item of personal property an amount equal to one-fourth of its purchase price. Dennis, however, testified that the proper valuation method should be the replacement cost of each item.

In Montana, in distributing marital property pursuant to a dissolution and adopting proposed values or setting its own values, the District Court is free in its discretion to adopt the recommendation of a party or a layman. In Re Marriage of Garst (Mont. 1983), [206 Mont. 89,] 669 P.2d 1063, 1066-67, 40 St.Rep. 1526, 1529; In Re Marriage of Goodmundson (1982), 201 Mont. 535, 539, 655 P.2d 509, 511. But it is also true that when faced with widely conflicting valuations, the District Court is required to give reasons for selecting one value over the others. Wolfe, 202 Mont. at 459, 659 P.2d at 262. Clearly, the District Court should have stated its reasons for adopting Margaret’s valuation over Dennis’. We, however, hold that the error was harmless, the method employed by the District Court being more sound than the method suggested by Dennis.

Dennis next contends that the District Court erred in selecting the time valuation of the marital estate. In the instant case, the District Court valued Dennis’ estate as of the date of separation and Margaret’s estate as of the date of dissolution. Dennis maintains that the same valuation date should be applied to both parties and that it should be the date of separation. Margaret, however, contends that the valuation dates adopted allowed for an equitable analysis and allocation of the parties’ assets.

The standard for reviewing the property division in a dissolution decree is well settled in Montana. The apportionment made by the District Court will not be disturbed on review unless there has been a clear abuse of discretion as manifested by a substantially inequitable division of the marital assets resulting in substantial injustice. In Re Marriage of Holston (Mont. 1983), [205 Mont. 470,] 668 P.2d 1048, 1050, 40 St.Rep. 1435, 1436-37; In Re Marriage of Schultz (1982), 199 Mont. 332, 338, 649 P.2d 1268, 1271; In Re Marriage of Brown (1978), 179 Mont. 417, 422, 587 P.2d 361, 364. Abuse of discretion is further indicated by a District Court’s arbitrary action without employment of conscientious judgment or in excess of the bounds of reason resulting in substantial injustice. In Re Marriage of Martens (Mont. 1981), [196 Mont. 71,] 637 P.2d 523, 525, 38 St.Rep. 2135, 2137; In Re Marriage of Creon (1981), 195 Mont. 254, 275, 635 P.2d 1308, 1309.

It is well settled that a proper disposition of marital property in a dissolution proceeding requires a finding of the net worth of the parties. In Re Marriage of Hamilton (1980), 186 Mont. 282, 285, 607 P.2d 102, 103; In Re Marriage of Vivian (1978), 178 Mont. 341, 344, 583 P.2d 1072, 1074; In Re Marriage of Kramer (1978), 177 Mont. 61, 67, 580 P.2d 439, 443. This Court has further recognized that selection of a single valuation date for determining the net worth of the parties can create an inequitable disposition. In Re Marriage of Wagner (Mont. 1984), [208 Mont. 369,] 679 P.2d 753, 757, 41 St.Rep. 409, 414.

In the instant case the parties effected a partial and informal division of a portion of the marital estate at or about the time of separation. Specifically, they each took a substantial portion of cash and placed it in their separate accounts. Margaret applied her cash toward maintaining herself and the parties’ minor son for whom Dennis provided no support or financial assistance during the separation. With regard to Dennis, however, it is sufficient to say that the record is clear that he dissipated his cash in ways which did not further the legitimate objectives of the marriage.

The District Court relied on Dennis’ dissipation of funds in reaching its conclusion that to equitably apportion the parties’ marital estate separate valuation dates were necessary. Section 40-4-202(1), MCA, permits the District Court to consider “dissipation of value of the respective estates” by one or both of the parties in its apportionment of the marital estate. Here, the District Court considered Dennis’ dissipation of assets in its determination of the parties net worth. It made no substantive difference whether the District Court considered Dennis’ dissipation of funds in its determination of the net worth of the parties or in its actual apportionment of the marital estate because a finding of net worth is simply the first step in the apportionment process. We, therefore, hold that the District Court did not abuse its discretion by selecting separate valuation dates for the estates of the respective parties.

With regard to the apportionment of assets to the respective parties, Dennis contends it was error for the District Court to award Margaret additional assets to cover the expenses she intends to incur in sending the parties’ son to college. In this regard, the District Court made the following findings of fact:

“37. The evidence further shows that the parties’ son is a senior in high school and an honor student at Billings Central Catholic High School, and Boys State delegate and that he desires a college education. His last year at Central will cost $1,048.00 in tuition.

“39. ... In light of the husband’s superior earning capacity, the wife’s need for retraining in order to obtain suitable employment and the expense she will incur in educating the parties’ son, the Court finds it equitable to award her approximately 65% of the net marital estate . . . .” (Emphasis added.)

Section 40-4-202(2), MCA, states:

“In a proceeding, the court may protect and promote the best interests of the children by setting aside a portion of the jointly and separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent children of the parties.” (Emphasis added.)

Thus, in the instant case, the District Court erred in two respects. First, it was error to award a portion of the marital estate directly to Margaret for the education of the parties’ son. Such an apportionment should have been placed in a “separate fund or trust” as provided by Section 40-4-202(2), MCA.

Second, Section 40-4-202(2), MCA, permits the District Court to set aside a portion of the marital estate only for the education of a “minor” child. Here, the District Court apparently awarded Margaret a greater portion of the marital estate using as one of the factors in its decision the college education of the parties’ son. In Montana, a parents obligation for support ends at the age of majority, unless there has been some voluntary agreement that support by one or both parents will continue beyond majority. In Re Marriage of Bordner (Mont. 1986), [220 Mont. 339,] 715 P.2d 436, 438, 43 St.Rep. 417, 419-20; In Re Marriage of Herrig (1982), 199 Mont. 174, 187, 648 P.2d 758, 765. The District Court’s consideration of Margaret’s educational expenses effectively placed an improper obligation on Dennis to support their son beyond majority. This cannot be done. Thus, we remand this case for the District Court to apportion the parties’ assets without regard to the expenses Margaret will incur in sending the parties’ son to college. The District Court, however, may consider Margaret’s expenses in raising and educating the parties’ son from the time of separation until he reached majority as a significant contribution to the marital estate. In Re Marriage of Popp (Mont. 1983), [206 Mont. 415,] 671 P.2d 24, 28, 40 St.Rep. 1747, 1751. The District Court may, of course, grant Margaret a larger share of the marital property upon the need for her retraining and his superior earning capacity.

Dennis’ final contention is that the District Court erred in awarding Margaret the parties’ Individual Retirement Account for failure to consider the tax consequences. Dennis, however, failed to present this issue to the District Court and advances it here with no citation of authority to establish an immediate tax liability. In Re Marriage of Beck (Mont. 1981), 631 P.2d 282, 285, 38 St.Rep. 1054, 1058. We, therefore, will not discuss the issue further.

We remand to the District Court for further proceedings consistent with this opinion.

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