author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. PENG Y. LOH, Defendant and Appellant.
    No. 94-325.
    Submitted on Briefs November 2, 1995.
    Decided April 5, 1996.
    53 St.Rep. 226.
    275 Mont. 460.
    914 P.2d 592.

      For Appellant: Patrick D. Sherlock, Sherlock & Nardi, Kalispell.
    For Respondent: Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Assistant Attorney General; Thomas J. Esch, Flathead County Attorney, Ed Corrigan, Deputy Flathead County Attorney, Kalispell.
   JUSTICE NELSON

delivered the Opinion of the Court.

Peng Y. Loh (Loh) appeals from her conviction of criminal possession of dangerous drugs, a felony, and the Flathead County, Eleventh Judicial District Court’s denial of her motions to suppress evidence seized from her home and to suppress her incriminating statements. We affirm.

ISSUES

1. Did the District Court err in denying Loh’s motions to suppress in violation of Rule 2, Uniform District Court Rules?

2. Did the District Court err in denying Loh’s motion to suppress evidence found in plain view by fire fighters and police officers during an emergency entry of Loh’s home?

3. Did the District Court err in denying Loh’s motion to suppress her incriminating statements?

4. Did the District Court err in taking judicial notice of testimony given during the suppression hearing?

BACKGROUND

On May 31, 1993, the Whitefish Police Department responded to a report of a house fire at 530 1/2 Spokane Avenue, Whitefish, Montana. Officers Denham, Cook, and Bergstrom arrived at the scene at about 7:30 p.m. One of the individuals gathered near the house told the officers that there were possibly two people inside the house. Officer Denham kicked in the back door, but could not enter because of thick black smoke. Officers Cook and Bergstrom kicked in the front door. The smoke was too heavy to see above three to four feet from the floor, so they crawled through the house on their hands and knees. Officer Denham went around to the front door and followed Officers Bergstrom and Cook.

Officer Denham crawled into the bedroom, did not see anyone, but did see a “classical spaghetti jar with green leafy substance” that he suspected to be marijuana. He gave the jar to Officer Bergstrom to take out to the patrol car. Officer Denham continued into the bedroom where he saw a flat cardboard box with clear glass jars containing the same leafy substance. He gave the box of jars to Officer Bergstrom. As soon as Officer Denham exited out the front door, the firemen arrived.

After the firemen took care of the smoke and flames from the burning pan on the stove, Fire Chief Sipe told the officers that he thought there was still “some more stuff in the bedroom.” Officer Denham and Fire Chief Sipe went back into the bedroom where they found two more boxes with a green leafy substance spilling out onto the floor. The boxes had been knocked over when the firemen had gone through the house. Officer Denham put the boxes on the futon. The officers then called the drug team.

While the officers waited for the drug team’s arrival, Loh came home from work. Officer Cook informed her that there had been a fire in her house, but nothing had been destroyed. He then advised Loh of her Miranda rights and told her that he had found marijuana in her house. She replied “I know.” Officer Cook arrested Loh and took her to the 'Whitefish Police Department. ’When Officers Voelker and Cook interviewed Loh, she admitted that she knew of the marijuana and admitted that it was hers. Loh grew up in Malaysia and moved to the United States eleven years prior to her arrest. She had not yet perfected her citizen status.

After the drug team arrived, the officers thoroughly searched the house, including the basement, cars, drawers, and Loh’s bicycle bag. Loh was charged with criminal possession of dangerous drugs, a felony. She was arraigned on the charge, appeared before the District Court, was advised of her rights, and entered a plea of not guilty. The District Court set the case for further proceedings. Loh moved to suppress evidence and to suppress her confession. At the suppression hearing, Loh admitted that she knew there was marijuana in the house. The State sought admittance of only the evidence seized before the drug team arrived and thus before the extensive search. The District Court denied Loh’s motion.

At the beginning of the bench trial, the State requested that the District Court take judicial notice of Loh’s testimony from the suppression hearing. Over Loh’s objection, the District Court concluded that it would take judicial notice of facts it obtained from presiding over the earlier proceeding. The District Court found Loh guilty of criminal possession of dangerous drugs, a felony, deferred imposition of sentence, and placed her on probation.

DISCUSSION

1. Did the District Court err in denying Loh’s motions to suppress in violation of Rule 2, Uniform District Court Rules?

Loh argues that Rule 2 of the Uniform District Court Rules requires the adverse party to file an answer brief to a motion within ten days or the motion will be well taken, and that the District Court erred by not ruling in Loh’s favor when the State filed its answer brief well after the ten day period had expired. Loh also contends that by denying her motion, the District Court set a prejudicial trend against her. The State counters that failure to file a brief within ten days does not require a district court to grant the motion and that the record does not support Loh’s allegation that the District Court was biased against her.

Our standard of review of discretionary trial court rulings in criminal cases is whether the trial court abused its discretion. State v. Sullivan (1994), 266 Mont. 313, 324, 880 P.2d 829, 836. Rule 2 of the Uniform District Court Rules provides:

(a) Upon filing a motion or within five days thereafter, the moving party shall file a brief. The brief may be accompanied by appropriate supporting documents. Within ten days thereafter the adverse party shall file an answer brief which also may be accompanied by appropriate supporting documents. Within ten days thereafter, movant may file a reply brief or other appropriate responsive documents.
(b) Failure to file briefs. Failure to file briefs may subject the motion to summary ruling. Failure to file a brief within five days by the moving party shall be deemed an admission that the motion is without merit. Failure to file an answer brief by the adverse party within ten days shall be deemed an admission that the motion is well taken. Reply briefs by movant are optional, and failure to file will not subject a motion to summary ruling.

We have interpreted this Rule as allowing the trial court discretion to either grant or deny an unanswered motion. Maberry v. Gueths (1989), 238 Mont. 304, 309, 777 P.2d 1285, 1289. In Maberry, the adverse party did not file a response to a motion within the ten days allowed under Rule 59(c), M.R.Civ.P. The moving party argued that Rule 2(b) of the Uniform District Court Rules required that the motion be well taken. The district court denied the motion even though the nonmoving party did not file its answer brief within the allotted ten days. Maberry, 777 P.2d at 1288. In Maberry, we reasoned that under Rule 2(b), failure to file a brief “may” subject such a motion to summary ruling. Therefore, while the adverse party’s failure to file a brief within the time allowed may be viewed as an admission that the motion is well-taken, the rule does not require a district court to grant the unanswered motion. Accordingly, we held in Maberry that Rule 2(b) does not remove the district court’s discretion to grant or deny an unanswered motion as it sees fit. Maberry, 777 P.2d at 1289.

Similarly, in State v. Fertterer (1993), 260 Mont. 397, 399, 860 P.2d 151, 153, the defendants filed a motion to amend their sentences. The state did not file an answer brief. The defendants then filed a motion for summary ruling to which the state also failed to respond. On the date of the hearing on the motions, the state filed its objections. On appeal, the defendants claimed that Rule 2(b) of the Uniform District Court Rules required that the district court grant their motion for summary ruling because the state did not file its response briefs within the allotted ten days. We disagreed. Citing Maberry, we held that the district court did not abuse its discretion in denying the defendant’s summary ruling on their motion to amend sentences. Fertterer, 860 P.2d at 153.

In the instant case, although the State failed to file its brief within the allotted ten days, it was within the sound discretion of the District Court to deny Loh’s motion. Furthermore, the record does not support Loh’s contentions that the District Court set a prejudicial trend against her by denying her motion. Accordingly, we conclude that the District Court did not abuse its discretion, and, thus, we affirm the trial court on this issue.

2. Did the District Court err in denying Loh’s motion to suppress evidence found in plain view by fire fighters and police officers during an emergency entry of Loh’s home?

Loh argues that the District Court erred in denying her motion to suppress and that the search of her home violated her Fourth Amendment rights. Loh concedes that the officers lawfully entered her home under exigent circumstances, but she contends that the evidence upon which she was convicted was discovered after it was determined that no persons were in danger. She maintains that when the officers discovered the evidence on which her conviction was based, they were unlawfully in her home, without a search warrant.

The State claims that the record does not support Loh’s argument. The State contends that in the course of searching for persons in the house, the officers saw the evidence in plain view. Moreover, the State notes that none of the evidence seized after the drug team arrived and conducted a concededly unlawful warrantless search was relied upon to convict Loh. The only evidence used to convict Loh was that observed during the initial lawful entry and search for persons. The District Court adopted this view of the evidence. We will not overturn a district court’s findings of fact regarding suppression hearing evidence unless those findings are clearly erroneous. State v. Kaluza (1993), 262 Mont. 360, 361, 865 P.2d 263, 264.

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Warrantless searches “are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585. One of these exceptions — the plain view doctrine — allows peace officers, under certain circumstances, to seize evidence in plain view without a warrant. State v. Sorenson (1979), 180 Mont. 269, 272, 590 P.2d 136, 139 (citing Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564).

As the United States Supreme Court recently described the doctrine in Horton v. California (1990), 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112,

[t]he “plain view” doctrine is often considered an exception to the general rule that warrantless searches are presumptively unreasonable, but this characterization overlooks the important difference between searches and seizures. If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy. A seizure of the article, however, would obviously invade the owner’s possessory interest. If “plain view” justifies an exception from an otherwise applicable warrant requirement, therefore, it must be an exception that is addressed to the concerns that are implicated by seizures rather than by searches. [Citations omitted.]

Horton, 469 U.S. at 133-34, 110 S.Ct. at 2306.

“A search compromises the individual interest in privacy; a seizure deprives the individual of dominion over his or her person or property.” Horton, 496 U.S. 133, 110 S.Ct. at 2306. The seizure of property in plain view involves no invasion of privacy. Texas v. Brown (1983), 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502. “[This] principle is grounded on the recognition that when a police officer has observed an object in ‘plain view,’ the owner’s remaining interests in the object are merely those of possession and ownership.” Texas, 460 U.S. at 739, 103 S.Ct. at 1541.

In Coolidge, the United States Supreme Court set forth the criteria that generally guides plain view seizures. The Court held that the police violated the Fourth Amendment when they seized two automobiles parked in plain view in the defendant’s driveway and that, therefore, evidence of gunpowder obtained from vacuuming the inside of the cars was inadmissible. A search sought to be upheld under the plain view doctrine begins with the premise that the police officer had a prior justification for an intrusion, in the course of which he came inadvertently across a piece of evidence incriminating the accused. Coolidge, 403 U.S. at 465-66, 91 S.Ct. at 2037-38. The Court placed two limitations on the plain view doctrine, however: first, “plain view alone is never enough to justify the warrantless seizure of evidence,” and second, “the discovery of evidence in plain view must be inadvertent.” Coolidge, 403 U.S. at 468-69, 91 S.Ct. at 2039-40. For example, “[w]here the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate.” Coolidge, 403 U.S. at 465, 91 S.Ct. at 2037.

The Court clarified plain view in Texas, noting that the doctrine merely reflects the application of the Fourth Amendment’s requirement of reasonableness to the law governing seizures of property. Therefore, the question of whether the property in plain view may be seized turns on the legality of the intrusion that enables the officer to see and physically seize the property in question. Texas, 460 U.S. at 737, 103 S.Ct. at 1540-41.

In a subsequent case, Horton, the United States Supreme Court further clarified and refined the doctrine, noting that the second limitation the Court had placed on plain view in Coolidge — inadvertency — was not supported by the majority of the Court and is not binding precedent. Horton, 496 U.S. at 137, 110 S.Ct. at 2308. The Horton Court stated that it was “satisfied that the absence of inadvertence was not essential to the Court’s rejection of the State’s ‘plain-view’ argument in Coolidge.” Horton, 496 U.S. at 137, 110 S.Ct. at 2308. In Horton, the Court set forth the predicate for application of the plain view doctrine and delineated the two conditions for its employment, as follows:

It is ... an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed. There are, moreover, two additional conditions that must be satisfied to justify the warrantless seizure. First, not only must the item be in plain view; its incriminating character must also be “immediately apparent.”.... Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself. [Citations omitted.]

Horton, 496 U.S. at 136-37, 110 S.Ct. at 2308.

The Court chose not to continue the Coolidge inadvertency requirement because it was a standard that depended on the subjective state of mind of the officer rather than an objective standard of conduct. Horton, 496 U.S. at 138, 110 S.Ct. at 2308-09. Moreover, in refuting the need for inadvertency, the Court observed that the seizure of an object in plain view does not involve an intrusion on privacy. “If the interest in privacy has been invaded, the violation must have occurred before the object came into plain view and there is no need for an inadvertence limitation on seizures to condemn it.” Horton, 496 U.S. at 141, 110 S.Ct. at 2310.

Following this same rationale, the Ninth Circuit Court of Appeals recently adopted the Horton requirements in a case involving a warrantless, plain view seizure. See G & G Jewelry, Inc. v. City of Oakland (9th Cir. 1993), 989 F.2d 1093. In G & G Jewelry, the court noted that in Horton, the United States Supreme Court had disposed of the inadvertence requirement of the plain view exception. G & G Jewelry, 989 F.2d at 1099.

Moreover, the Circuit Court also analyzed the Supreme Court’s reference at footnote 7 of the Horton decision to the Coolidge “exigent circumstances” requirement. Noting the Coolidge mandate that “the officer [must not only] be lawfully located in a place from which the object can be plainly seen, but ... must also have a lawful right of access to the object itself,” the Horton Court observed that “[t]his is simply a corollary of the familiar principle ... that no amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’ ” Horton, 496 U.S. at 137, 110 S.Ct. at 2308. The Ninth Circuit explained the reference, noting that in Texas, the Court had made it clear that there is no additional requirement of “exigent circumstances” for seizure of property that is in plain view, provided that the officer’s presence on the property is lawful and the incriminating character of the evidence is immediately apparent.

Footnote 7 in Horton is best understood as emphasizing that even though contraband plainly can be seen and identified from outside the premises, a warrantless entry into those premises to seize the contraband would not be justified absent exigent circumstances.

G & G Jewelry, 989 F.2d at 1101. Thus, while exigent circumstances may serve as the predicate for the officer’s initial lawful entry upon the premises, they are not required for seizure of contraband in plain view if the officer is already legally on the premises.

Montana case law has varied in its application of the plain view doctrine; however, the majority of our cases rely on the Coolidge requirements. Montana first adopted the plain view doctrine in State v. Gallagher (1973), 162 Mont. 155, 509 P.2d 852. In Gallagher, an officer engaged in a search for a prowler, saw a blood-stained shirt, and what appeared to be blood-stained pants and socks belonging to the defendant. We held that the evidence should have been admitted as evidence seized under the plain view doctrine. Gallagher, 509 P.2d at 858. In so holding, we adopted the conditions set forth in Coolidge: “[w]here there is prior justification for the police to search an area, and in searching the area, they inadvertently find incriminating evidence which they had no reason to anticipate, they may lawfully seize that incriminating evidence.”

In State v. Lane (1977), 175 Mont. 225, 573 P.2d 198, we reiterated the predicate to and the conditions of the plain view doctrine as set forth in Coolidge. Noting that the doctrine is not without limits, we stated that an officer is not justified in making a warrantless seizure of evidence absent a showing of exigent circumstances rendering immediate seizure imperative. Lane, 573 P.2d at 201. In Lane, the officer sold his mobile home to the defendant and returned to the home looking for a pair of hip-waders that he had left behind. As he stood at the door to the home, the officer looked in the window and saw marijuana plants. The officer entered the home, arrested the defendant, and seized the marijuana plants. The officer did not have prior justification to enter the defendant’s home; there were no exigent circumstances justifying a warrantless entry. We held that the plain view doctrine does not extend to pre-intrusion observation of evidence within a constitutionally protected area. Lane, 573 P.2d at 202.

In State v. Godsey (1982), 202 Mont. 100, 106, 656 P.2d 811, 814, we held that an officer investigating a traffic complaint did not violate the Fourth Amendment when he seized a bag of marijuana he saw in the front seat of the car. This Court reasoned that for the evidence to fall within the plain view doctrine, it must be demonstrated that:

(1) the police officer had a prior justification for the intrusion; (2) that he then inadvertently came across the evidence incriminating the accused; and (3) that exigent circumstances existed that rendered immediate seizure imperative.

Godsey, 656 P.2d at 813. Curiously, in the context of this three-part test, Godsey placed the exigent circumstances requirement, not as justification for the warrantless entry, but, rather, as the predicate for a warrantless seizure.

In State v. Osteen (1985), 216 Mont. 258, 700 P.2d 188, we returned to the two-part test for application of the plain view doctrine: the officers must have prior justification for the intrusion and the incriminating evidence must be discovered inadvertently in the course of the justified intrusion. Osteen, 700 P.2d at 191 (citing Sorenson, 590 P.2d at 139 (requiring prior justification and inadvertence)). In Osteen, we held that because the officers failed to obtain a warrant and the state failed to demonstrate any other valid basis for entry into the defendant’s home, the district court did not err in suppressing evidence seized after the officer’s entered the defendant’s home without a warrant. Osteen, 700 P.2d at 192.

In State v. Hembd (1989), 235 Mont. 361, 767 P.2d 864, the state appealed the district court’s order granting defendant’s motion to suppress evidence seized from the trunk of his vehicle pursuant to a search warrant. Hembd, 767 P.2d at 865. The defendant contended that the search warrant did not permit the officers to search any bag or container in the trunk other than the bag mentioned in the affidavit. In Hembd, we stated that under the plain view doctrine, four requirements must be met to seize items which are not described in a warrant; 1) there must be a prior justification for the intrusion into the protected area; 2) the articles must be in plain view; 3) the incriminating nature of the items must be apparent; and 4) the discovery of the articles must be inadvertent. Hembd, 767 P.2d at 869; see also State v. O’Neill (1984), 208 Mont. 386, 679 P.2d 760.

In State v. Williams (1994), 268 Mont. 428, 887 P.2d 1171, this Court acknowledged that the Fourth Amendment prohibition against warrantless searches and seizures is not violated when circumstances fall within the plain view doctrine. In Williams, this Court noted that the elements of the plain view doctrine were first enunciated in Coolidge and we proceeded to set forth the two-part Coolidge test of prior justification and inadvertence. However, as we did in Godsey, we stated that “[e]xigent circumstances are necessary to justify immediate seizure of evidence in plain view,” but that the requirement did not apply in Williams because the deputies obtained a warrant before seizing the evidence. Williams, 887 P.2d at 1174.

Most recently, in State v. Stubbs (1995), 270 Mont. 364, 372, 892 P.2d 547, 552, we stated that a valid plain view seizure requires 1) that the officer have a prior justification for the intrusion; 2) that the officer inadvertently discover a piece of evidence; and 3) that the incriminating character of the item seized must be apparent.

Given the development of plain view in the federal courts and our own somewhat inconsistent articulation of the elements of the doctrine, we conclude that it is appropriate that we adopt, for this and future cases, the Supreme Court’s enunciation of the doctrine as set forth in Horton. We believe this to be the better approach to plain view inasmuch as the Court’s analysis in Horton follows the underlying theory of the plain view doctrine that a seizure does not infringe on the defendant’s privacy when the officer is already lawfully on the premises and observes evidence in plain view. Moreover, once the Fourth Amendment has been satisfied as regards the officer’s initial entry and right of access (because the search is either based upon a warrant or because a warrantless search is circumscribed by the exigencies which justify its initiation), no additional interest is served by further requiring that the discovery of evidence be inadvertent. Horton, 496 U.S. at 139-40, 110 S.Ct. at 2309-10. Furthermore, while exigent circumstances might justify the initial entry, once the officer is lawfully on the premises, there is no additional requirement that exigent circumstances exist before the property of an incriminating character in plain view may be seized. G & G Jewelry, 989 F.2d at 1100-01. Accordingly, to the extent that our prior case law holds that the doctrine of plain view includes a requirement that evidence be inadvertently discovered and/or that the immediate seizure of evidence in plain view requires exigent circumstances, such cases are overruled.

The essential predicate to any valid warrantless seizure of incriminating evidence is that the officer must be lawfully at the place from which he could plainly view the evidence. In other words, his initial entry onto or intrusion into the place where he views the evidence must not have been in violation of the Fourth Amendment or in violation of Article II, section 11 of Montana’s Constitution. In addition, there are two conditions that must be satisfied to justify the warrantless seizure under the plain view doctrine. First, the item must be in plain view and its incriminating character be “immediately apparent.” Second, not only must the officer be lawfully located in a place from which the object can be plainly seen but he or she must also have a lawful right of access to the object itself. See Horton, 496 U.S. at 136-37, 110 S.Ct. at 2307-08.

Applying this articulation of the plain view doctrine to the case before us, we first inquire whether the officers were lawfully in Loh’s home when they seized the incriminating evidence which was ultimately entered against her at trial. Under similar facts, the Washington Supreme Court has held that fire fighters lawfully in a defendant’s home when they observed incriminating evidence, properly seized that evidence. State v. Bell (Wash. 1987), 737 P.2d 254. In Bell, fire fighters checked the attic directly over the burned area in a house to make sure there were no smoldering embers. Bell, 737 P.2d at 256. While in the attic, the fire fighters noticed what they thought were marijuana plants. One of the fire fighters then summoned the fire marshall. The fire marshall left the house to attend to other duties but returned after 15 to 20 minutes and seized the plants. The Washington Supreme Court noted that a burning building creates an exigency that justifies a warrantless entry by fire officials. Bell, 737 P.2d at 257 (citing Michigan v. Clifford (1984), 464 U.S. 287, 293, 104 S.Ct. 641, 646-47, 78 L.Ed.2d 477, 483-84).

A burning building clearly presents an exigency of sufficient proportions to render a warrantless entry “reasonable.” Indeed, it would defy reason to suppose that firemen must secure a warrant or consent before entering a burning structure to put out the blaze. And once in a building for this purpose, firefighters may seize evidence of arson that is in plain view.

Michigan v. Tyler (1978), 436 U.S. 499, 509, 98 S.Ct. 1942, 1950, 56 L.Ed.2d 486, 498. Moreover, officials do not need a warrant to remain in a building for a reasonable time to investigate the cause of the blaze after it has been extinguished. Clifford, 464 U.S. at 293, 104 S.Ct. at 646-47.

We conclude that here, the officers were lawfully in Loh’s home when they seized the incriminating evidence. In this case, the exigent circumstances of an apparent fire and the possibility that individuals were still in the house justified the officers’ entry into Loh’s home without a warrant. Accordingly, the “essential predicate” that the officers’ intrusion into the place where they viewed the evidence not violate the Fourth Amendment or Article II, section 11 of Montana’s Constitution was fulfilled.

Next, the record reflects that the jars of marijuana and the open boxes of marijuana were in Officer Denham’s plain view as he searched the bedroom for the occupants of the house. Moreover, the incriminating character of green leafy substance was “immediately apparent” as Officer Denham testified that he recognized the leaves as marijuana leaves. Finally, not only were the officers lawfully located in the bedroom of Loh’s home where they observed the marijuana in plain view, but they also had a lawful right of access to what was obviously contraband, the possession of which was prohibited under Montana law.

Under our application of the Horton test as adopted in this case, we conclude that the seizure of the jars and boxes of marijuana met the initial predicate for the plain view doctrine as well as the two conditions for application of the doctrine. Accordingly, on the basis of the factual record established at the suppression hearing, we affirm the District Court’s denial of Loh’s motion to suppress.

3. Did the District Court err in denying Loh’s motion to suppress her incriminating statements?

Loh argues that her Fifth Amendment privilege against self-incrimination and her Fourteenth Amendment right to due process of law were violated when the District Court admitted her allegedly involuntary and coerced statements. The State contends that following a hearing pursuant to § 46-13-301, MCA, the District Court correctly denied Loh’s motion to suppress after finding that Loh was highly intelligent, understood her rights, and voluntarily made the statements admitting that the marijuana was hers.

We review a district court’s findings of fact on a motion to suppress an admission or a confession to determine whether the findings are clearly erroneous. State v. Hermes (1995), [273 Mont. 446], 904 P.2d 587, 588-89, (citing Kaluza, 865 P.2d at 264). A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if this Court has a definite or firm conviction that the district court committed a mistake. Hermes, 904 P.2d at 589 (citing State v. Bower (1992), 254 Mont. 1, 7, 833 P.2d 1106, 1110).

Pursuant to § 46-13-301, MCA, a defendant may move to suppress a confession or admission on the ground that it was given involuntarily. The prosecution has the burden to prove by a preponderance of the evidence that the confession or admission was voluntary. Section 46-13-301, MCA.

The voluntariness of a confession or admission is a factual question which must take into account the totality of the circumstances. State v. Mayes (1992), 251 Mont. 358, 376, 825 P.2d 1196, 1208 (citing State v. Allies (1979), 186 Mont. 99, 606 P.2d 1043). The totality of the circumstances includes the following factors, among others: the defendant’s age and level of education; the interrogation technique used by the police; whether the defendant was advised of his or her Miranda rights; the defendant’s prior experience with the criminal justice system and police interrogation; the defendant’s background and experience; and the defendant’s demeanor, coherence, articulateness, and capacity to make full use of his or her faculties. Hermes, 904 P.2d at 589; State v. Shaver (1988), 233 Mont. 438, 444, 760 P.2d 1230, 1233. Moreover, a confession or admission extracted by any sort of threat or violence, by the exertion of any improper influence, or by any direct or implied promises, however slight, has the potential for being involuntary. State v. Phelps (1985), 215 Mont. 217, 224, 696 P.2d 447, 451.

In Hermes, for example, the defendant had little formal education, was -unaware of his Miranda rights, lived in an isolated area in a house without electricity, and had never been charged with a crime or interrogated by the police prior to this occasion. Thus, we held that the circumstances surrounding the defendant’s confession rendered his confession involuntary. Hermes, 904 P.2d at 589. Additionally, the police did not inform the defendant of his Miranda rights, used guilt assumption interrogation techniques, and “barked” questions at the defendant. Hermes, 904 P.2d at 589.

Similarly, in State v. Grey (1995), [274 Mont. 1], 907 P.2d 951, 956, we held that the totality of the circumstances of police deception and failure to give adequate Miranda warnings rendered the defendant’s confession involuntary. In Grey, the police used impermissible procedures to procure the defendant’s confession by making false statements to the defendant after singling him out for investigation and by following a procedure of advising him of his Miranda rights in a fashion that likely ensured he would not exercise them. Grey, 907 P.2d at 955.

In State v. Beach (1985), 217 Mont. 132, 151, 705 P.2d 94, 107, we held that the totality of the circumstances supported the district court’s finding that the state proved the statements made by the defendant were voluntary. In Beach, we noted that the presence of timely and complete Miranda warnings supported voluntariness. Beach, 705 P.2d at 106. Moreover, there was no evidence that the defendant possessed less than average intelligence or that he was incapable of understanding the Miranda warnings. The officers that interrogated the defendant testified that he appeared calm and coherent; the questioning sessions were not long, arduous, or designed to take advantage of the defendant’s situation or fatigue; and the officers made no threats of harm or promises. Beach, 705 P.2d at 106.

In the instant case, the totality of the circumstances supports the District Court’s finding that the State met its burden of showing by a preponderance of the evidence that Loh’s incriminating statements were voluntary. Loh was timely advised of her Miranda rights when she arrived at her home. Officer Voelker testified that Loh was again advised of her Miranda rights at the police station. The officers testified that Loh was relaxed, did not appear to have trouble understanding English, and appeared to understand her rights. The District Court found that Loh was “one of the most intelligent, insightful and articulate witnesses to testify in [his] court.” Loh testified that the officers were friendly and did not outwardly use words to coerce her, (although she also stated that they did mislead her by saying that they had a search warrant and would tear the house apart if she did not tell them what was going on). Officer Voelker denied threatening Loh with getting a search warrant or telling her he had a search warrant. In addition, the questioning sessions were not long, arduous, or designed to take advantage of Loh’s situation or fatigue.

While we have repeatedly held that lying to a defendant or misleading the defendant is not acceptable, (see Grey, 907 P.2d at 955), the totality of the circumstances in this case, supports the finding that Loh voluntarily stated that she knew that she had marijuana in her house. Accordingly, we hold that the District Court’s findings were not clearly erroneous and that its denial of Loh’s motion to suppress her incriminating statements must be affirmed.

4. Did the District Court err in taking judicial notice of testimony given during the suppression hearing?

Loh contends that the District Court erred in taking judicial notice of testimony from the suppression hearing. The State argues however, that it presented its case-in-chief at the suppression hearing where the defendant was represented by counsel and where the witnesses were under oath and were subject to cross-examination. The same judge presided over the suppression hearing and the bench trial. Thus, the State claims that the District Court clearly had the discretion to take judicial notice of facts established at a hearing over which it presided, heard testimony, and heard objections.

The record in this case reflects that the Chief of the Whitefish Fire Department, Dave Sipe, Officers Cook, Denham, Meehan, and Voelker, all testified at the suppression hearing and the following evidence was offered and received in that proceeding: the “classical” pasta jar, a box of jars, two empty boxes, the marijuana found in the jars and boxes, the lab report, and two bags of marijuana. Before the beginning of the trial, the State requested the court to take judicial notice of the testimony presented at the suppression hearing. Specifically, the prosecutor stated:

I don’t see any reason to bring in the firemen to testify about the nature of their search of the house and were subject to cross-examination about finding these boxes in plain view. These items have been introduced into evidence and it seems to me to be redundant and a waste of the Court’s time to have to go through those procedural steps again.
Loh objected, stating
Yes, Your Honor, we would obj ect to that at this time. The witnesses are here and my client does have a right to a trial. We did have a suppression hearing. Some evidence was brought out, some evidence wasn’t brought out, and we will not stipulate to the fact that that evidence may be used and would object that it be used and would request that the Court only consider evidence presented from the witness stand under oath at this time; thank you.
The trial court, on the basis of Rule 201, ruled that in light of the Defendant’s choice to waive a jury trial and have the case submitted to the Court sitting without a jury, I think the point is well taken. It would be not only redundant but entirely wasteful. I think the facts that you have asked me to take — of which you have asked me to take judicial notice are of a type contemplated by Rule 201 and I’ll grant your motion.

Thereafter, the State called Officers Denham, Voelker, and Meehan as witnesses. In summary, those witnesses testified that: during their search, they came across the jar of marijuana, a cardboard box full of jars of marijuana, and two boxes that had marijuana spilling out of them and that Loh said she was aware of the marijuana in her house and that she said she had grown it for their own use. Those witnesses were subject to cross examination. The defendant called Todd Dennison, a probation parole officer. At trial, the court received all of the evidence which had been previously received at the suppression hearing.

On the basis of the record before us, and irrespective of the trial court’s taking judicial notice of the testimony in the suppression hearing, we conclude that the State presented sufficient evidence at trial on which the fact finder could conclude beyond a reasonable doubt that Loh was guilty of the offenses charged. What is apparent from the record is that if the court was without authority to take judicial notice of the evidence at the suppression hearing for purposes of proof at trial, the error was harmless at most.

We are unable to conclude that any substantial right of Loh was violated, and her trial objection, which was only very general in nature, does not specify what authority would preclude the trial court from taking judicial notice of the suppression evidence or what rule, statute, or constitutional provision might be violated by the court’s decision in that regard. See State v. Weeks (1995), 270 Mont. 63, 85, 891 P.2d 477, 490-91, (specific objections must be made to evidence deemed inappropriate; broad general objections are not sufficient). Moreover, at the conclusion of the trial, Loh did not raise any further objection as to the sufficiency of the evidence offered at trial.

Accordingly, we hold that there was sufficient evidence offered at trial to sustain Loh’s conviction, and we decline to address the propriety of the trial court’s taking judicial notice at trial of the evidence and testimony from the suppression hearing. This opinion should not be read as either approving or disapproving of that procedure.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    IN RE GUARDIANSHIP OF D.T.N., a Minor Child.
    No. 95-404.
    Submitted on Briefs January 4, 1996.
    Decided April 5, 1996.
    53 St.Rep. 253.
    275 Mont. 480.
    914 P.2d 579.

      For Appellant: Mary Rose Heller, Sanders & Heller, Hamilton.
    For Respondent: Judith A. Loring, Attorney at Law, Stevensville.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Thomas and Joanne Nichols filed a petition in the District Court for the Twenty-First Judicial District in Ravalli County for permanent guardianship of D.T.N. After a hearing, the court entered its order in which it appointed the petitioners as D.T.N.’s permanent guardians. Krista Dickman, the mother of D.T.N., appeals the court’s order. We reverse the order of the District Court.

The issue on appeal is whether the District Court erred when it appointed the Nicholses to be D.T.N.’s permanent guardians.

FACTUAL BACKGROUND

Krista Dickman is the natural mother of D.T.N., who was born on July 27,1992. Arturo T. Nichols is D.T.N.’s natural father. Krista and Art were never married to each other and no determination has been made that one is entitled to D.T.N.’s custody as opposed to the other.

After D.T.N.’s birth, Art and Krista lived together or separately in various places including Montana, Washington, and California. In July 1994, Krista arrived in Idaho where, on July 12, 1994, she executed a notarized document which evidenced her intent to temporarily relinquish physical custody of D.T.N. to her sister and mother. Krista then left and traveled across the country.

Eventually, Krista’s sister brought D.T.N. back to Montana and in September 1994, Thomas and Joanne Nichols, the paternal grandparents of D.T.N., began taking care of him. On September 23, 1994, the Nicholses filed a petition for a temporary guardianship of D.T.N. The court heard evidence in support of the petition. However, before an order was entered, Krista and the Nicholses entered into an agreement in which Krista consented to the guardianship on a temporary six-month basis. Arturo, D.T.N.’s father, also consented to the guardianship, and on October 26, 1994, the court included the parties’ agreement in its order granting temporary guardianship of D.T.N. to the Nicholses.

In December 1994, the Nicholses traveled with D.T.N. to California. While they were gone, Krista married Jeff Dickman and the couple moved into an apartment.

On February 21, 1995, the Nicholses moved the court to appoint them permanent guardians. On March 8, 1995, the court held a hearing to consider that motion. However, before a decision was made by the court, the Nicholses and Krista entered into another agreement in which Krista agreed to satisfy certain conditions during the remaining period of the temporary guardianship. The conditions required that Krista and her new husband take parenting classes, be evaluated for chemical dependency, and if necessary, take chemical dependency classes.

On April 12, 1995, the Nicholses filed a petition for appointment as permanent guardians. On April 18,1995, Krista filed a withdrawal of consent to temporary guardianship and a petition for removal of guardians and termination of temporary guardianship. The temporary guardianship expired by law on April 25, 1995.

On May 30, 1995, the court held a hearing to consider the parties’ claims. On June 20, 1995, the court issued its order in which it granted the Nicholses’ petition. It found that pursuant to § 40-4-221, MCA, the Nicholses had physical custody of the child and that when the physical custody commenced the child was not in the physical custody of either parent; that the natural father consented to the guardianship; that Krista “voluntarily relinquished physical custody of the child in the early summer of 1994” and “did not evidence or demonstrate an intent to resume custody or to provide for the child’s care”; that when the child was in Krista’s care he was neglected and/or dependent as those terms are defined by § 41-3-102, MCA; and that the child’s best interest, pursuant to § 40-4-212, MCA, would be served by the appointment of the petitioners as D.T.N.’s permanent guardians. It also found that Krista and the child’s natural father, Arturo T. Nichols, had agreed to resolve ultimate custody and visitation issues by April 25, 1995, the date the Nicholses’ temporary guardianship status would otherwise terminate, but that they had failed to do so. The court then concluded that the Nicholses should be awarded permanent guardianship.

DISCUSSION

The issue on appeal is whether the District Court erred when it appointed the Nicholses to be D.T.N.’s permanent guardians.

We review a district court’s conclusions of law related to the appointment of a guardian, as we do in other cases, to determine if they are correct. Jim’s Excavating Serv., Inc. v. HKM Assocs. (1994), 265 Mont. 494, 501, 878 P.2d 248, 252. We review the underlying factual findings to determine whether they are clearly erroneous. Rule 52(a), M.R.Civ.P.; Brown v. Tintinger (1990), 245 Mont. 373, 377, 801 P.2d 607, 609.

The Nicholses petitioned for appointment as permanent guardians of D.T.N. pursuant to the guardianship provisions of the Uniform Probate Code, found at §§ 72-5-201 through -234, MCA. The Nicholses’ arguments and the District Court’s order incorporate provisions of the U.P.C., Montana’s Uniform Marriage and Divorce Act, and this state’s statutes relating to abused and neglected children to construct the legal justification for the District Court’s decision. However, since the Nicholses sought permanent guardianship of D.T.N. pursuant to the U.P.C., we will consider the merits of Krista’s appeal in that context.

Section 72-5-225(2), MCA, provides in part that:

Upon hearing, if the court finds that a qualified person seeks appointment, venue is proper, the required notices have been given, the requirements of72-5-222 have been met, and the welfare and best interests of the minor will be served by the requested appointment, it shall make the appointment.

(Emphasis added). Section 72-5-222(1), MCA, referred to in § 72-5-225(2), MCA, provides that “[t]he court may appoint a guardian for an unmarried minor if all parental rights of custody have been terminated or suspended by circumstances or prior court order.” All criteria set forth in -225(2), MCA, and the requirement imposed by -222(1), MCA, must be satisfied before a court may grant any application for appointment of a permanent guardian.

After a hearing, the District Court granted the Nicholses’ petition for permanent guardianship; however, it failed to make a specific finding that Krista’s parental rights were “terminated or suspended by circumstances or prior court order.” Instead, the court seemingly ignored the requirements of § 72-5-222(1), MCA, made several findings related to custody determinations made pursuant to the Marriage and Divorce Act or termination of parental rights, and concluded that the child’s best interest would be served if D.T.N. remained with the Nicholses. We will, however, review the record to determine if Krista’s parental rights were “terminated or suspended” as § 72-5-222(1), MCA, requires.

On appeal, Krista contends that her parental rights had not been suspended or terminated by circumstances or prior court order. In fact, both parties concede that no prior court order terminated or suspended her parental right of custody. Therefore, we must determine whether the facts support a finding that Krista’s parental rights of custody were “suspended by circumstances.”

This Court has interpreted the term “suspended by circumstances” in only one case, In re Aschenbrenner (1979), 182 Mont. 540, 597 P.2d 1156. In Aschenbrenner, the natural mother of three children also entrusted the care of her children to paternal grandparents, although in that case it was for a period of three weeks. When she left the children with the paternal grandparents on a second occasion for a shorter period of time, they refused to return the children to her. Instead, they petitioned for appointment as the children’s guardian. Aschenbrenner, 182 Mont. at 542-43, 597 P.2d at 1159.

After considering evidence, including the testimony of a social worker who questioned the mother’s ability as a parent, the district court granted the petition for a permanent guardianship based on findings similar to those made in this case. Aschenbrenner, 182 Mont. at 543-44, 597 P.2d at 1159. The court concluded that based on the mother’s inadequacy as a parent, the children were dependent and neglected and that their best interests were served by placing them in the care of their grandparents. Aschenbrenner, 182 Mont. at 544, 597 P.2d at 1159. When the mother appealed from the district court’s decision, we were asked to decide whether a guardianship proceeding may be used to terminate the custodial rights of a natural parent. We held that parental rights could not be terminated in that manner. Aschenbrenner, 182 Mont. at 547-48, 597 P.2d at 1161.

In Aschenbrenner we first noted the jurisdictional requirement at § 72-5-222(1), MCA, that parental rights be terminated before a permanent guardian can be appointed, and then considered whether that mother’s parental rights of custody had been “suspended by circumstances.” Aschenbrenner, 182 Mont. at 545, 597 P.2d at 1160. Based on the facts in that case, we held that they had not been terminated. Although it was not a guardianship case, we cited In re Doney (1977), 174 Mont. 282, 570 P.2d. 575, in support of our conclusion. Because that case includes facts similar to those in this case, it is worth quoting that part of our Aschenbrenner decision.

In Matter of Guardianship of Doney (1977), 174 Mont. 282, 570 P.2d. 575, the natural father of the children left them with his sister-in-law for a period of two months “while he composed himself and prepared to take the children into his home” and thereafter even signed guardianship papers, giving his consent to give temporary custody of the children to his sister-in-law. In rejecting the argument that this showed an abandonment of parental custodial rights, we stated: “Surrender of custody of a minor child by a parent is presumed to be temporary unless the contrary is made to appear.” Doney, 570 P.2d at 577.

Aschenbrenner, 182 Mont. at 547, 597 P.2d at 1161.

In Aschenbrenner we also concluded that whether the grandparents were better able to provide a good environment for the children than the mother was irrelevant because the mother had a fundamental constitutional right to the custody of her children. We quoted again from Doney to the effect that the “best interest of the child” test is only relevant after there has been a showing of dependency or abuse or neglect pursuant to our termination of parental rights statutes, or in custody disputes between two natural parents. Aschenbrenner, 182 Mont. at 549, 597 P.2d at 1162. We stated that:

“However, where third parties seek custody, it has long been the law in Montana that the right of the natural parent prevails until a showing of a forfeiture of this right. Ex parte Borquin, 88 Mont. 118, 290 P. 250 (1930). See also Matter of Fisher, 169 Mont. 254, 545 P.2d 654 (1976). The Uniform Marriage and Divorce Act does not change this law. This forfeiture can result only where the parent’s conduct does not meet the minimum standards of the child abuse, neglect and dependency statutes.”

Aschenbrenner, 182 Mont. at 550, 597 P.2d at 1162-63 (quoting Henderson v. Henderson (1977), 174 Mont. 1, 10, 568 P.2d 177, 182).

Although the district court in Aschenbrenner found, as did the District Court in this case, that the children were “dependent and neglected,” we held that that kind of determination could not be made in a guardianship proceeding instituted by paternal grandparents, but only in a proceeding instituted to have children declared dependent and neglected, brought by the county attorney pursuant to Title 41, Chapter 3, of the Montana Code Annotated. Aschenbrenner, 182 Mont, at 551, 597 P.2d at 1163.

We noted in Aschenbrenner that while the district court’s confusion was understandable based on the various statutory schemes governing the termination of parental rights or the custody of children, each scheme had a specific and distinct purpose with its own procedures which must be followed. We held that:

To insure that minors involved received the full protection of these laws, the procedures should be “rigorously followed.” In re Guardianship of Evans (1978), 179 Mont. 438, 445, 587 P.2d 372, 376. District [c]ourts must identify and adhere to the proper procedure and standards to be used in the proceedings before them. Only then will the fundamental rights and relationship existing between parent and child be fully realized or, when necessary, properly severed.

Aschenbrenner, 182 Mont. at 553, 597 P.2d at 1164.

The phrase “suspended by circumstances” was more recently considered by the Supreme Court of Idaho in a case which involved facts similar to those that exist in this case. In In re Copenhaver (Idaho 1993), 865 P.2d 979, 980, two minor children had been left in the care and custody of the petitioners in June 1990. On September 13, 1990, they petitioned for guardianship pursuant to Idaho’s version of the Uniform Probate Code. They alleged that the mother had voluntarily surrendered their custody and was currently residing in Arizona, that neither of the children’s natural fathers had provided any support or care for them, and therefore, that parental rights had been “suspended by circumstances.” Temporary guardianship was granted. However, the natural parents moved to set aside the temporary guardianship based on their intent to claim their rights as natural parents. Copenhaver, 865 P.2d at 980-81.

Instead, after a hearing, a permanent guardianship was granted and the mother appealed. Copenhaver, 865 P.2d at 981.

On appeal, the Supreme Court of Idaho noted that the application for appointment of a guardian of a minor is a statutory proceeding which must proceed based on statutory terms, and not based on principles of equity. Copenhaver, 865 P.2d at 983. Based on a guardianship statute identical to Montana’s, it concluded that, under the circumstances in that case, before a guardian could be appointed it must first be established that the natural parent’s right to custody had been suspended by circumstances. Without such a finding, the Idaho Court acknowledged that an inquiry about the children’s best interest would be irrelevant. Copenhaver, 865 P.2d at 983-84.

The Idaho Supreme Court noted that in that case the minor children had been left with the petitioners from June 1990 to the date of the hearing in March 1991; that the natural mother had stated that she could not afford her children; and that during their placement with the petitioners the mother had had little contact with her children. In fact, the petitioners had little information about the mother’s whereabouts and she had been difficult to locate. In addition, the trial court made findings intended to demonstrate an inadequate level of maternal care, including alcohol and drug abuse. Copenhaver, 865 P.2d at 984. Nevertheless, after reviewing decisions from other jurisdictions which had interpreted the phrase “suspended by circumstances,” the Idaho Court concluded that when the natural mother appeared in the guardianship proceeding, objected to the guardianship, made it clear that she no longer desired to leave the children and that she was willing and capable of caring for them, and made her whereabouts known, her parental rights were no longer suspended by circumstances. The Idaho Supreme Court held that at that point the magistrate’s findings regarding the children’s living situation, school enrollment, financial support, and contact with their mother no longer had any relevance. Copenhaver, 865 P.2d at 984-85.

The drafting committee’s Comment to § 5-204 (the corresponding U.P.C. section to § 72-5-222(1), MCA), promulgated by the National Conference of Commissioners on Uniform State Laws, also indicates the restrictive nature of the section. The Comment states:

Nothing in this Article is intended to deal with the status of a so-called natural guardian, with the authority of a parent over a child, or with authority over a child or children that may be conferred by other state laws.
The court [under the Probate Code] is not authorized to appoint a guardian for one for whom a parent has custodial rights or for one who has a parental guardian.

Uniform Probate Code § 5-204 (Comment), 8 U.L.A. 445 (1983) (emphasis added). Similarly, as observed by Richard V. Wellman, in 2 Uniform Probate Code Practice Manual, at 511 (1977):

Under the [Uniform Probate] Code, the power of the court to appoint a guardian for a minor is narrowly limited. ... It should be remembered, however, that the court has no power to appoint a guardian at all if the minor has a living parent entitled to his custody or a guardian appointed by the will of a parent [who] is willing to act. The parents and their testamentary appointees have, therefore, priority over everyone whom the court might

appoint unless the parents have been deprived of custody. (Emphasis added.)

We agree that the guardianship provisions of the Probate Code were never intended as a substitute for the custody provisions of our Marriage and Divorce Act, nor the prescribed and demanding procedures established for the termination of parental rights. See §§ 40-4-211 through -226, MCA; §§ 41-3-601 through -612, MCA.

We conclude that Krista’s parental rights were not terminated by circumstance. Krista appeared in this action, withdrew her consent to the temporary guardianship, and filed a petition to terminate the temporary guardianship. These actions indicate that she is present and that she has not voluntarily relinquished her right to physical custody of her child. Moreover, Krista’s previous surrender of D.T.N. and consent to the implementation of the temporary guardianship is presumed to be temporary unless the contrary is made to appear. Aschenbrenner, 597 P.2d at 1161 (quoting Doney, 570 P.2d at 577). Therefore, while Krista did voluntarily relinquish physical custody of D.T.N. and consented to the temporary guardianship, that guardianship ended on April 25, 1995. It could not form the basis for termination- of her rights as a parent because it was limited by its terms and by statute to a specific period of time.

For these reasons, we conclude that the requirements of § 72-5-222(1), MCA, were not met. Based on our review of the record, Krista’s parental rights of custody have not been terminated or suspended by circumstance or prior court order. We therefore conclude that the District Court erred when it awarded permanent guardianship to the Nicholses and we reverse the District Court’s order.

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


author: JUSTICE ERDMANN

text:
    IN RE MARRIAGE OF MARTHA A. HOGSTAD, Petitioner and Respondent, and DENNIS HOGSTAD, Respondent and Appellant.
    No. 95-362.
    Submitted on Briefs February 8, 1996.
    Decided April 5, 1996.
    53 St.Rep. 257.
    275 Mont. 489.
    914 P.2d 584.

      For Appellant: Brenda R. Cole, Swandal, Douglass, Frazier & Cole, Livingston.
    For Respondent: Rienne McElyea, Berg, Lilly, Andriolo & Tollefsen, Bozeman.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

Dennis Hogstad and Martha Hogstad were divorced in October 1994. Dennis appeals from the findings of fact, conclusions of law, and decree of dissolution entered by the Sixth Judicial District Court, Park County. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

We restate the issues on appeal as follows:

1. Did the District Court err in designating Martha the primary custodial parent for Matthew, the parties’ minor child?

2. Did the District Court err in dividing the marital property?

3. Did the District Court err in determining child support?

4. Did the District Court err in establishing a visitation schedule for Matthew?

FACTS

Dennis and Martha were married on May 31,1986, in Livingston. Matthew Hogstad, who is currently eight years old, is the only child born of the marriage. Martha has a thirteen-year-old daughter, Laura, from a previous marriage.

The parties resided in Livingston during the course of their marriage. Martha was employed as the office manager for Brand-S Corporation until the plant closed its Livingston operation in May 1994. Dennis worked as a carpenter for the National Park Service in Yellowstone National Park from approximately April to October of each year. During the winter months Dennis worked locally for a Livingston contractor.

Martha and Dennis separated in September 1993 and on September 17, 1993, Martha filed a petition for dissolution. When Martha’s employment in Livingston ceased she disclosed her intent to relocate to Oregon with Matthew. Martha sought physical custody of Matthew for the school year with Dennis having summer visitation. Dennis sought just the opposite — he requested custody of Matthew for the school year with Martha receiving summer visitation.

The parties agreed that a custodial evaluation for Matthew should be performed and they stipulated that Dr. Chuck Kelly and Suzy Saltiel would jointly perform the evaluation. The evaluators determined that Martha had been Matthew’s primary caretaker. They were aware of Martha’s intent to move to Oregon with Matthew, but nonetheless concluded that Martha should remain the primary custodial parent. The evaluators recommended that Martha have physical custody of Matthew during the school year with Dennis having visitation during summer months and on alternating holidays.

In addition to the issues of Matthew’s custody, support, and visitation, the parties each claimed certain premarital property interests. Martha owned the couple’s residence prior to the marriage and she and Dennis both agreed that she should receive her premarital equity in the home as part of the distribution of marital assets.

Prior to the marriage, Dennis and a friend jointly owned property and a cabin in the Crazy Mountains. The original purchase price was $16,000 and Dennis’s contribution was $8,000. During the marriage, Dennis and his friend divided the property. Dennis received approximately half the property and $6,000 in lieu of his friend keeping the cabin. Dennis deposited $5,200 from that transaction into the parties’ Franklin Money Market account and when the property was divided Dennis and Martha filed a joint tenancy deed to the property. The parties agreed that the value of the property at the time of the divorce was $21,500. They also agreed that at the time of the marriage Dennis had approximately $7,700 in separate credit union accounts.

On September 26 and 27, 1994, a final hearing on the matter was conducted, and on October 31, 1994, the District Court entered its findings of fact, conclusions of law, and decree of dissolution. The District Court awarded the parties joint custody of Matthew and determined that Matthew’s primary residence should be with Martha, subject to liberal visitation for Dennis. The District Court ordered Dennis to pay $275 per month in child support and set a visitation schedule for Dennis and Matthew.

The District Court concluded that the value of Martha’s home at the time of the marriage was $15,000, noting that a $27,000 home improvement loan the parties received was not determinative as such loans typically include the value of the remodeling efforts. The District Court found that if the house were to be sold for fair market value the first $15,000 of value after payment of outstanding debt should go to Martha with the balance of the sale proceeds shared equally between the parties.

The District Court determined that with respect to Dennis’s mountain property, the increase in value from the date of marriage to the date of divorce ($8,000 to $21,500) should be equally divided between the parties. While the District Court did not specifically address the separate funds Dennis brought into the marriage, it ordered the parties to equally divide the Franklin Money Market account.

On December 2, 1994, Dennis filed a notice of appeal and a motion for stay of judgment pending appeal. On December 6,1994, Martha and Matthew left Montana for Oregon. On December 21, 1994, the District Court denied the motion for stay of judgment and this appeal followed.

ISSUE 1

Did the District Court err in designating Martha the primary custodial parent for Matthew?

The standard of review in a child custody case is whether the district court’s findings are clearly erroneous. In re Marriage of Dreesbach (1994), 265 Mont. 216, 220-21, 875 P.2d 1018, 1021. The findings of fact must be based on substantial credible evidence and the court’s decision will be upheld unless a clear abuse of discretion is shown. Dreesbach, 875 P.2d at 1021; In re Marriage of Hunt (1994), 264 Mont. 159, 164, 870 P.2d 720, 723.

Dennis argues that he has a very close relationship with his son and that it was not in Matthew’s best interest for the District Court to designate Martha the primary custodial parent and allow her to move to Oregon with Matthew. He contends that the District Court should have given greater consideration to the fact that Matthew was well integrated into the Livingston community and his school and day care environments.

Martha argues that the District Court is in the best position to resolve custody disputes and that the District Court’s determination that she should have physical custody of Matthew was supported by the evidence. Martha relies on the custodial evaluation performed by Dr. Kelly and Ms. Saltiel which indicates that Martha has been Matthew’s primary caretaker and that it is in Matthew’s best interest to have that arrangement continue. She notes that Dennis and the evaluators were aware of her intent to move to Oregon with Matthew and that the District Court addressed Matthew’s ability to adjust to a new community in its custody determination.

In custody disputes involving both parents of a minor child, district courts shall award custody according to the best interest of the child as set out in § 40-4-212, MCA. Section 40-4-223, MCA (1993). In making its custody determination, the District Court gave “significant weight” to the results of the custody evaluation performed by Dr. Kelly and Ms. Saltiel. Both evaluators recommended that Martha be designated the primary custodial parent for Matthew. In its findings of fact the District Court stated “[i]n making this determination the Court has considered the provisions of Section 40-4-212 MCA.” Due to Matthew’s age and his desire to please both parents the court did not consider his wishes in making its determination.

The District Court found that Martha had been the primary care giver for Matthew for most of the time during the marriage, as Dennis’s employment required that he be gone from the home for four to five days at a time. The court also found that Dennis had shown little interest in Matthew’s school activities, having only attended one activity since Matthew had been in school, and that Martha would be better able to provide for him during the school year. The record reflects that the District Court considered the factors set forth in § 40-4-212, MCA (1993), in making its custody determination and that the court’s findings are supported by substantial evidence.

We conclude that the District Court’s findings relating to custody are not clearly erroneous and we hold that the District Court did not abuse its discretion in awarding the parties joint custody of Matthew and designating Martha as the primary residential custodian. We affirm the District Court on this issue.

ISSUE 2

Did the District Court err in dividing the marital property?

The standard of review of a district court’s division of marital property is whether the court’s findings of fact are clearly erroneous. If substantial credible evidence supports the court’s findings and judgment, this Court will not change the district court’s decision unless the court abused is discretion. In re Marriage of Smith (1995), 270 Mont. 263, 267-68, 891 P.2d 522, 525. See also In re Marriage of Maedje (1994), 263 Mont. 262, 265-66, 868 P.2d 580, 583.

Martha’s Home

The District Court found the value of Martha’s home at the time of the marriage to be $15,000. It was undisputed that the house was encumbered by a $10,000 mortgage at the time of the marriage but the District Court failed to match that premarital debt to Martha’s premarital equity in the home. Instead, the court found that upon the sale of the home the first $15,000 of value after payment of debt against the house should go to Martha. Dennis argues that in awarding Martha $15,000 as her premarital equity interest in the home the District Court erred by failing to take into account the $10,000 mortgage which encumbered the property at the time.

Martha counters that she requested over $19,000 as her premarital interest in the home, and therefore, the District Court did not err in awarding her $15,000. She claims that the “home improvement” loan in the amount of $27,000 was actually a “home equity” loan based on the appraisal ordered by the bank. Martha contends that the result reached by the District Court was sound, even if its reasoning was flawed by not taking into account the mortgage lien against the home.

We are not persuaded by Martha’s arguments. In valuing the home at $15,000 the District Court concluded that Dennis’s opinion and expertise as an experienced carpenter carried more weight than Martha’s opinion that the home was worth $30,000. Furthermore, in reaching the $19,000 figure as her premarital interest in the home Martha herself subtracted the $10,000 mortgage from her $30,000 estimate. The District Court should have done the same when it calculated Martha’s equity interest in the home.

We therefore determine Martha’s premarital equity interest in the home to be $5,000 ($15,000 estimated value minus $10,000 mortgage). The District Court’s finding that the first $15,000 of value after payment of debt against the home should go to Martha is not supported by substantial evidence and is therefore clearly erroneous. We conclude that the District Court abused its discretion in failing to account for the outstanding mortgage when it determined Martha’s interest in the home. We reverse the District Court on this issue and remand for further proceedings in this regard.

Dennis’s Separate Funds

The parties agreed that Dennis brought $7,705 in separate funds into the marriage. Dennis argues that the District Court erred in not awarding him that amount as part of the property distribution. Even though the District Court ordered that the parties should equally divide the Franklin Money Market account, it did not specifically address the separate funds Dennis brought into the marriage.

Martha claims that the money was placed into a joint money market account which they used as a general savings account. Dennis does not contest this allegation. Martha and Dennis placed the money received from the home equity loan into the account and paid for various housing proj ects out of the account. Martha placed money she received from her previous employer’s profit sharing plan into the account and she and Dennis paid various bills out of the account, including income taxes, property taxes, and credit card debts. Martha contends that the funds Dennis brought into the marriage were commingled with her profit sharing funds and the home equity loan proceeds. She claims that the account was marital property and that the District Court correctly determined that it should be divided evenly between the parties.

We have stated that under § 40-4-202, MCA, the district court is vested with broad discretion to distribute the marital estate in a manner which is equitable to each party according to the circumstances of the case. Smith, 891 P.2d at 525. Section 40-4-202, MCA, provides that in dividing marital property a court may equitably apportion the parties’ property and assets “belonging to either or both, however and whenever acquired.”

In distributing premarital property the court must consider the contributions of the other spouse, including:

(a) the nonmonetary contribution of a homemaker;
(b) the extent to which such contributions have facilitated the maintenance of this property; and
(c) whether or not the property division serves as an alternative to maintenance arrangements.

Section 40-4-202, MCA (1993).

In determining that the money market fund should be evenly divided between the parties, the District Court found that “each of the parties hereto has contributed to the fund.” In addition to Martha’s monetary contributions to the account, Martha testified that she did ninety-five percent of the cooking, cleaning, and laundry in the household, and was responsible for paying all of the bills during the marriage. Her contributions as a homemaker facilitated the maintenance of the account since the household services she provided would have otherwise been expenses of the marriage.

We have held that “[ijncluding the premarital assets in the marital estate is not an abuse of discretion, nor does it result in substantial injustice.” In re Marriage of Peterson (1989), 238 Mont. 470, 475, 778 P.2d 402, 405. We have also recently held that the district court did not abuse its discretion by including in the marital estate property which the husband had brought into the marriage. In re Marriage of Binsfield (1995), 269 Mont. 336, 343-44, 888 P.2d 889, 893.

We conclude that the District Court’s finding that the parties had each contributed over the years to the money market fund is supported by substantial evidence and is not otherwise clearly erroneous. Each party made monetary contributions to the account and Martha made nonmonetary contributions as a homemaker. The District Court did not abuse its discretion in determining that the funds from the account should be evenly split between the parties and we affirm the District Court on this issue.

Dennis’s Mountain Property

Prior to the marriage Dennis contributed $8,000 toward the purchase of mountain property in the Crazy Mountains. He purchased the property in 1981 with a friend for $16,000 and owned the land free and clear before he and Martha were married. In 1992 Dennis and his friend divided the property and Dennis received $6,000 and half of the acreage. At the time of the dissolution hearing the property was valued at $21,500.

The District Court made the following finding concerning the mountain property:

While [Dennis] argues that [Martha] did nothing to increase the value of this property, it appears that [Dennis] did nothing either and that the increase is due simply to market factors. [Dennis] should be entitled to receive the first thousand dollars of equity in this property, and the difference between the market value of $21,500 and such $8,000 should be shared equally between the parties.

Dennis argues that the entire value of the property should be retained by him as a separate premarital asset. He maintains that the District Court was correct in finding that the increase in value to the property was due simply to market factors and that Martha did nothing to contribute to the increase in the value of the land. Dennis further claims that he should receive credit for the $5,200 he deposited in the money market fund from the $6,000 he received when he and his friend divided the property. He argues that these are proceeds traceable to his premarital asset.

Martha counters that the mountain property was part of the marital estate as she was fisted as a joint owner on the deed to the land and notes that the property taxes for the land were paid out of the parties’ joint money market account. In urging us to affirm the District Court Martha relies on Maedje to argue that her contributions as ahomemaker should be considered, thus allowing her to receive a portion of the mountain property as part of the marital estate.

We conclude that the District Court’s finding that the increase in value to the property was due simply to market factors is supported by substantial evidence and is otherwise not clearly erroneous. Martha’s contributions as a homemaker in the marriage did not contribute to the maintenance and appreciation of the mountain property. We distinguish our holding in Maedje by noting that in that case the district court specifically found that the spouse had “contributed in some fashion to the maintenance and appreciation of [the] properties.” Maedje, 868 P.2d at 584. The District Court should have awarded Dennis the entire value of the mountain property.

However, we do not agree with Dennis that he should receive all of the $5,200 he deposited into the money market account when the property was divided in 1992. We earlier addressed the District Court’s distribution of the money market fund and concluded that the District Court did not abuse its discretion in dividing the account evenly between the parties.

We conclude that the District Court abused its discretion in dividing the difference between the present market value of the mountain property and its original purchase price ($21,500 minus $8,000) evenly between the parties. Dennis should receive credit for $21,500, representing the full value of the mountain property. We reverse the District Court on this issue and remand for further proceedings in this regard.

ISSUE 3

Did the District Court err in determining child support?

The standard of review of a district court’s award of child support is whether the district court abused its discretion. In re Marriage of Craib (1994), 266 Mont. 483, 490, 880 P.2d 1379, 1384. A presumption exists in favor of the trial court’s determination and we will not overturn its findings unless the court has abused its discretion. In re Marriage of Brown (1994), 263 Mont. 184, 187, 867 P.2d 381, 382. This Court has stated that “a district court must apply its discretion in a realistic manner, taking into account the actual situation of the parties.” In re Marriage of Noel (1994), 265 Mont. 249, 252, 875 P.2d 358, 359. See also In re Marriage of D.F.D. and D.G.D. (1993), 261 Mont. 186, 203, 862 P.2d 368, 378-79; In re Marriage of Anderson (1993), 260 Mont. 246, 255-56, 859 P.2d 451, 457.

After reviewing the child support guideline work sheets submitted by the parties, the District Court determined that Martha’s calculation of $310 per month was correct. However, the District Court granted Dennis a variance in the amount of $35 per month for long-distance visitation costs for which it determined Dennis would be responsible. The amount of child support was therefore set at $275 per month. The District Court also ordered Dennis to maintain health insurance coverage for Matthew. Dennis argues on appeal that the District Court erred in not crediting his child support amount to account for the health insurance premium payments.

Dennis’s argument on this issue is not persuasive. At the time of the dissolution hearing, Dennis had not secured health insurance coverage for Matthew. Martha had enrolled Matthew in the COBRA extension plan offered by her previous employer and was paying the premium associated with the coverage. Dennis cannot now argue that he should have received credit on his child support for insurance coverage he was not providing at the time of the hearing.

We conclude that the District Court did not abuse its discretion in setting the amount of child support at $275 per month. The amount is realistic and takes into account the actual situation of the parties. We affirm the District Court on this issue.

ISSUE 4

Did the District Court err in establishing a visitation schedule for Matthew?

Our standard of review for visitation is whether substantial credible evidence supports the district court’s findings. Dreesbach, 875 P.2d at 1022 (citing In re Marriage of Nash (1992), 254 Mont. 231, 234, 836 P.2d 598, 600). We will overturn a court’s visitation decision only when the court’s findings and conclusions clearly demonstrate an abuse of discretion. Dressbach, 875 P.2d at 1022 (citing In re Marriage of Anderson (1993), 260 Mont. 246, 254-55, 859 P.2d 451, 454).

The District Court determined that Dennis should exercise his visitation with Matthew during the entire summer vacation, commencing on the Tuesday after school ends in the spring and terminating ten days before school begins in the fall. In addition, Dennis received visitation on an alternating basis during the Christmas and Thanksgiving holidays and during the spring break vacation. The District Court stated that this plan “recognizes the fact that [Martha] is living in Oregon and [Dennis] will remain in Livingston.” As noted above, the court also determined that Dennis should be responsible for transportation costs associated with the long-distance visitation.

Dennis contends that Martha should have to pay at least one-half of the transportation costs and also argues that the District Court erred in establishing a visitation schedule that departs from the one recommended by Dr. Kelly and Ms. Saltiel. The custody evaluators recommended that Dennis have visitation for the summer vacation, every spring break, on alternating Thanksgiving holidays and for one week every Christmas — the difference being that the District Court’s plan alternated the spring break vacation and the Christmas holiday.

The District Court recognized the fact that Martha lives in Oregon and Dennis resides in Livingston. We conclude that the District Court did not abuse its discretion in adjusting the visitation schedule based on the physical distance between the parties. Furthermore, since Dennis receives credit against his child support for long-distance visitation, we conclude that the District Court did not abuse its discretion in determining that Dennis should be responsible for transportation costs. We affirm the District Court on this issue.

We affirm in part, reverse in part and remand to the District Court for reconsideration of its equitable distribution of the marital estate, based on our holdings on Issue 2 and the record before it, and for the entry of an amended final decree relating to the distribution of the marital estate which is consistent with this opinion.

JUSTICES GRAY, NELSON, HUNT and LEAPHART concur.


text:
    THOMAS R. BROEKER, Petitioner, Appellant, and Cross-Respondent, v. GREAT FALLS COCA-COLA BOTTLING COMPANY, Employer, and STATE COMPENSATION MUTUAL INSURANCE FUND, Defendant, Respondent, and Cross-Appellant.
    No. 95-221.
    Submitted on Briefs February 1, 1996.
    Decided April 5, 1996.
    53 St.Rep. 235.
    275 Mont. 502.
    914 P.2d 967.

      For Appellant: Lawrence A. Anderson, Attorney at Law, Great Falls.
    For Respondent: William O. Bronson, James, Gray, & McCafferty, Great Falls.
    For Amicus American Insurance Association: Jacqueline T. Len-mark, Keller, Reynolds, Drake, Johnson & Gillespie, Helena.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court

The petitioner, Thomas Broeker, filed a petition in the Workers’ Compensation Court of the State of Montana in which he sought to reduce the amount by which State Compensation Mutual Insurance Fund was offsetting his workers’ compensation disability benefits based on his receipt of social security disability benefits. He alleged that cost-of-living adjustments were inappropriately included in the offset computation and that the social security rate against which his benefits were offset should have been indexed to his date of injury, rather than his eligibility date. The Workers’ Compensation Court entered an order and judgment resolving the cost-of-living issue in favor of Broeker and the indexing issue in favor of the State Fund. Both Broeker and the State Fund appeal the order and judgment. We affirm the order and judgment of the Workers’ Compensation Court.

The issues on appeal include:

1. Did the Workers’ Compensation Court err when it concluded that the State Fund could not include social security cost-of-living increases in its calculation of the amount by which Broeker’s workers’ compensation benefits could be reduced?

2. Did the Workers’ Compensation Court err when it concluded that the social security disability benefit by which Broeker’s workers’ compensation benefits would be offset should be indexed to the date on which he became eligible for social security benefits, rather than the date of his injury?

FACTUAL BACKGROUND

In 1980, Thomas Broeker, a truck driver and refrigeration repairman with a ninth-grade education, suffered an industrial injury when a Coke machine fell on him. His injury arose out of and in the course of his employment with Great Falls Coca-Cola Bottling Company, which was insured by the State Compensation Insurance Fund.

Broeker properly reported his injury pursuant to the workers’ compensation law and the State Fund accepted liability for his claim and has paid him benefits since 1980. After his injury, Broeker continued to work intermittently; however, by August 1984, the degree of his disability had worsened and he was no longer able to perform his job. At that time, the State Fund began to pay him temporary total disability benefits, which it continued to pay until June 1, 1992, when his status was converted to permanent total disability. Since 1992, the State Fund has continued to pay Broeker permanent total disability benefits.

On May 30, 1990, Broeker applied for Social Security Disability Benefits and in March 1992, after a hearing, an administrative law judge held that he was entitled to benefits. The judge found that Broeker’s period of disability, pursuant to the Social Security Act, began on August 23,1984. Benefits were awarded retroactive to May 1989. While the payment accrued from May 1989, the initial benefit rate, which was $651 per month, reflected a basic rate indexed to August 23, 1984, plus five cost-of-living increases that had gone into effect between December 1984 and December 1987.

Following the Social Security Administration’s determination, the State Fund began to take an offset from Broeker’s workers’ compensation payments based on his reception of federal social security benefits pursuant to §§ 39-71-701(2) and -702(2), MCA (1979). The amount of the offset was based on the initial amount of the social security disability benefit, $651.50, and amounted to $74.91 per week.

Broeker petitioned the Workers’ Compensation Court to reduce the State Fund’s offset based on his claim that the State Fund should not be able to include adjustments for inflation in its offset calculation. He also claimed that the State Fund’s offset should be based on a social security disability rate indexed to his date of injury, rather than the date on which he became eligible for benefits.

ISSUE 1

Did the Workers’ Compensation Court err when it concluded that the State Fund could not include social security cost-of-living increases in its calculation of the amount by which Broeker’s workers’ compensation benefits could be reduced?

We review the Workers’ Compensation Court’s conclusions of law to determine whether they are correct. CNA Ins. Co’s. v. Dunn (1995), 273 Mont. 295, 297, 902 P.2d 1014, 1016; Stordalen v. Ricci’s Food Farm (1993), 261 Mont. 256, 258, 862 P.2d 393, 394.

The State Fund contends that it did not miscalculate its offset, but simply based it on the initial social security disability benefit Broeker was entitled to receive. And while this benefit included cost-of-living increases, the State Fund has not taken an offset based upon any cost-of-living increases Broeker received since the date of his initial social security benefit. Therefore, the State Fund asserts that it did not act contrary to the offset statutes or this Court’s decision in McClanathan v. Smith (1980), 186 Mont. 56, 606 P.2d 507.

The offset statute applicable to this case provides:

In cases where it is determined that periodic benefits granted by the Social Security Act, 42 U.S.C. 301 (1935), are payable because of the injury, the weekly benefits payable under this section are reduced, but not below zero, by an amount equal, as nearly as practical, to one-half the federal periodic benefits for such week.

Sections 39-71-701(2) and -702(2), MCA (1979).

In McClanathan, we held that Congress intended that the offset apply only to the primary insurance amount specified pursuant to 42 U.S.C. § 423, and not to cost-of-living increases provided pursuant to 42 U.S.C. § 415. McClanathan, 186 Mont. at 64, 606 P.2d at 512. McClanathan concerned cost-of-living increases made subsequent to the initial award, and therefore, we did not discuss increases included in the initial award.

Any cost-of-living increases, including those which become a part of the initial award, are governed by the Social Security Act. Because the State Fund has not taken offsets based upon any cost-of-living increases since the initial award, the cost-of-living adjustments at issue here are those built into the Social Security Administration’s initial benefit determination in 1992. See 42 U.S.C. § 415(i). Pursuant to 42 U.S.C. § 415, the cost-of-living increase is added to the primary insurance amount, and increases which are granted in any year following and including the year the individual becomes eligible for benefits are added to the primary insurance amount “without regard to the time of entitlement to that benefit.” 42 U.S.C. § 415(i)(2)(A)(ii)-(iii).

Therefore, although Broeker did not apply for benefits until May 1990, he became eligible for benefits on August 23,1984 (his disability date), subject to a waiting period, and was entitled to cost-of-living increases which were granted between that 1984 eligibility date and the date his benefits actually commenced. Broeker’s commencement date was May 1989 at which time his initial benefit was $651.50 and included five cost-of-living increases granted social security recipients between 1984 and 1988. These increases included a 3.5 percent increase on 12/84; a 3.1 percent increase on 12/85; a 1.3 percent increase on 12/86; a 4.2 percent increase on 12/87; and a 4.0 percent increase on 12/88.

When we decided McClanathan, the statutory formula for determination of the primary insurance amount, unlike the version which is now applicable, did not include cost-of-living adjustments. 42 U.S.C. § 415. Therefore, when we decided that case we concluded that:

The benefits to which appellant is entitled under 42 U.S.C. § 423 are disability benefits, not cost-of-living benefits, and are defined as “equal to his primary insurance amount for such month” calculated as though he had attained age 62. It is evident that the provisions of 42 U.S.C. § 424a(d) allowing the states to provide an offset contemplate only the benefits recoverable under 42 U.S.C. § 423, relating to the individual’s primary insurance benefits. Therefore, we hold that the state offset may not be used to reduce the benefits accruing to the appellant under the cost-of-living increases provided in 42 U.S.C. § 415.

McClanathan, 186 Mont. at 64, 606 P.2d at 511-12 (emphasis added).

Because the definition of primary insurance amount has since changed to include cost-of-living adjustments, we must now determine whether the cost-of-living adjustments included in the primary insurance amount should also be excluded from the offset determination.

Despite the change in the definition of primary insurance amount, the basic benefit for disabled persons is still the amount prescribed by 42 U.S.C. § 415(a) before any cost-of-living increases are added. Any increase to that basic amount is due to an increase in the cost-of-living, which in turn is caused by inflation. For several reasons, inclusion of cost-of-living increases in offset calculations is neither equitable nor necessary. McClanathan, 186 Mont. at 64, 606 P.2d at 511. Reasons for exclusion were given by the Colorado Supreme Court in Engelbrecht v. Hartford Accident and Indemnity Co. (Colo. 1984), 680 P.2d 231. The court reasoned:

Allowing an injured worker to keep his cost-of-living increase better protects the worker and gives him a more reliable source of income. In addition a cost-of-living increase does not result in a double award. The federal government has decided that it will maintain the buying power of social security payments, not that it will provide additional benefits for a particular injury. Because Colorado does not provide [workers’ compensation] benefits to keep pace with inflation, there is no double payment.

Engelbrecht, 680 P.2d at 233. Like Colorado’s Act, the Montana Workers’ Compensation Act, at the time of Broeker’s injury, did not provide for cost-of-living increases. Therefore, allowing Broeker to keep the cost-of-living increases does not result in an increased benefit or a double award. Moreover, inclusion of cost-of-living increases in offset calculations does not serve the purpose of the offset statute, which we have described as follows:

The legislative intent behind the workers’ compensation statutes is to replace income to injured workers. The purpose behind the state offset statute is to prevent “over replacement” or duplication of disability pay.

Watson v. Seekins (1988), 234 Mont. 309, 314-15, 763 P.2d 328, 332.

As noted in Colorado, allowing a claimant to keep that portion of his or her benefits attributable to inflation allows that person to replace income without duplication of benefits.

For these reasons, we conclude that all social security disability cost-of-living increases, whether included in the initial rate or awarded later, should be excluded when the offset against workers’ compensation disability benefits is calculated pursuant to §§ 39-71-701(2) and -702(2), MCA (1979). The decision of the Workers’ Compensation Court to this effect is affirmed.

ISSUE 2

Did the Workers’ Compensation Court err when it concluded that the social security disability benefit by which Broeker’s workers’ compensation benefits would be offset should be indexed to the date on which he became eligible for social security benefits, rather than the date of his injury?

Broeker contends that the language of the offset statute requires use of an offset based on a social security disability rate indexed to the date of his injury, rather than the date on which he became eligible to receive those benefits. His contention is based on his suggestion that the offset statute is ambiguous when it provides: :

In cases where it is determined that periodic benefits granted by the Social Security Act, 42 U.S.C. 301 (1935), are payable because of the injury, the weekly benefits payable under this section are reduced, but not below zero, by an amount equal, as nearly as practical, to one-half the federal periodic benefits for such week.

Sections 39-71-701(2) and -702(2), MCA (1979) (emphasis added). Broeker claims that the phrase “for such week,” is ambiguous because it could refer to the date of the claimant’s industrial injury - the date of the claimant’s disability; or the date of the claimant’s ultimate entitlement to Social Security benefits. Broeker asks this Court to conclude that since the statute is ambiguous, it should be interpreted liberally in favor of the claimant so that “for such week” refers to “the week of the injury.” See § 39-71-104, MCA (1979).

In response to this argument, the Workers’ Compensation Court held that:

However, the Court finds nothing ambiguous about the phrase. None of the proposed interpretations is correct. The provision is express and clear. It provides that “the weekly [workers’ compensation] benefits” are to be reduced by “one-half of the federal periodic benefits for such week.” It is plain from the words and context of the provision that “for such week” refers to the week in which the workers’ compensation benefits are paid. The statute requires that the offset be based on actual social security benefits paid during the same week as the workers’ compensation benefits are paid.

(Alteration in original.)

We agree. Furthermore, the rule of liberal construction in effect at the time of Broeker’s injuries is inapplicable because, as stated, the words of the statute are plain and unambiguous on their face and must be applied as written. Lovell v. State Comp. Mut. Ins. Fund (1993), 260 Mont. 279, 285, 860 P.2d 95, 99. Rules of construction applicable to ambiguous statutes do not apply to this statute.

Therefore, we conclude that the Workers’ Compensation Court was correct when it held that the amount by which Broeker’s workers’ compensation benefits should be offset is based on the social security disability benefit as indexed to the date on which he became eligible to receive those benefits.

For these reasons we affirm the order and judgment of the Workers’ Compensation Court.

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