author: JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF PRISCILLA DALE QUICK ROBINSON, Petitioner and Respondent, and CHARLES ROBINSON, Respondent and Appellant.
    No. 94-184.
    Submitted on Briefs October 13, 1994.
    Rehearing Denied February 23, 1995.
    Decided December 6, 1994.
    51 St.Rep. 1243.
    269 Mont. 293.
    888 P.2d 895.

      For Appellant: John L. Hollow, Attorney at law, Helena.
    For Respondent: Ann L. Smoyer, Smoyer Law Firm, Helena.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Petitioner Priscilla Dale Quick Robinson petitioned the First Judicial District Court, for Lewis and Clark County, for dissolution of her marriage to Charles Robinson on August 20,1992. On March 2, 1994, the District Court entered its decree dissolving the parties’ marriage. The decree (1) awarded joint custody of their minor child, Douglas, but awarded Priscilla primary care of Douglas; (2) ordered Charles to pay child support and maintenance; (3) ordered that the family home be sold and that Priscilla receive 65 percent of the net proceeds; (4) awarded Priscilla 35 percent of Charles’s retirement benefit; and (5) distributed the remaining assets as the parties had previously agreed. Charles appeals. We affirm.

The issues we find dispositive on appeal are:

1. Did the District Court err in its calculation of the net worth of the marital estate?

2. Did the District Court err in its distribution of the marital estate?

3. Did the District Court err when it awarded Priscilla a fixed percentage of Charles’s retirement benefit?

FACTUAL BACKGROUND

Charles and Priscilla were married on September 9,1973, in Verdi, Nevada. They lived in Reno, Nevada, until July 1981. Charles was employed by the Internal Revenue Service prior to and throughout their marriage. Priscilla was also employed during the marriage, but has been limited to temporary employment since 1981.

The parties’ only child, Douglas, was bom January 19, 1981. In 1981, the IRS promoted Charles and transferred him and his family to Montana. Because of this transfer, Priscilla quit her job to care for Douglas and became a full-time homemaker.

During the parties’ marriage, Charles’s income increased from approximately $33,000 a year in 1981, to over $61,000 a year at the time of the dissolution. While in Montana, Priscilla occasionally found temporary employment, but has not found long-term employment since leaving Nevada.

Charles ultimately became chief of planning and special programs at the Helena IRS office, a position which he held at the time of the dissolution. Since the parties’ separation in 1992, Priscilla has received job training, but has been unable to find permanent employment.

The parties agreed on the distribution of the marital assets, with the exception of Charles’s retirement fund with the federal government and the parties’ home in Helena. The present value of Charles’s retirement fund was calculated by Alton Hendrickson, a consulting actuary designated by the District Court as an expert. This valuation was based on Charles’s income and credits through 1992.

The parties’ home in Helena was valued at approximately $130,000. The District Court ordered that the home be sold and that Priscilla receive 65 percent of the proceeds, and Charles receive 35 percent of the proceeds.

There was conflicting testimony regarding the value of Charles’s retirement fund. Hendrickson valued Charles’s retirement fund at between $154,144 and $263,530, depending on the age at which it is taken. However, Charles calculated the present value of his retirement fund at only $79,892, presuming a retirement age of 65 years. The District Court entered a qualified domestic relations order which awarded Priscilla 35 percent of Charles’s IRS retirement benefit.

Charles was ordered to provide health insurance for Douglas and to pay 75 percent of any health insurance costs not covered by insurance. Charles was also ordered to pay Priscilla child support in the amount of $426 per month, and maintenance payments of $400 per month for two years, beginning in January 1994.

The District Court also determined that an inheritance Priscilla received from her mother was not part of the marital estate since the estate has not yet been closed and Priscilla did not receive anything from the estate until after the parties were separated.

ISSUE 1

Did the District Court err in its calculation of the net worth of the marital estate?

A district court has broad discretion in determining the value of property in a dissolution. In re Marriage of Milesnick (1988), 235 Mont. 88, 94, 765 P.2d 751, 755. “Its valuation can be premised on expert testimony, lay testimony, documentary evidence, or any combination thereof.” Milesnick, 765 P.2d at 755. “The court is free to adopt any reasonable valuation of marital property which is supported by the record.” In re Marriage of Rada (1994), 263 Mont. 402, 405, 869 P.2d 254, 255-56 (citing In re Marriage of Luisi (1988), 232 Mont. 243, 756 P.2d 456). “As long as the valuation [of property in a dissolution] is reasonable in light of the evidence submitted, we will not disturb the finding on appeal.” Milesnick, 765 P.2d at 755 (quoting Luisi, 756 P.2d at 459).

Before it divides the marital estate, we have held that the district court must first determine the net worth of the marital assets. In re Marriage of Stephenson (1989), 237 Mont. 157, 160, 772 P.2d 846, 848. “The test [when we review a property division] is whether the findings as a whole are sufficient to determine the net worth and to decide whether the distribution was equitable.” Stephenson, 772 P.2d at 848 (citing Nunnally v. Nunnally (1981), 192 Mont. 24, 27, 625 P.2d 1159, 1161). In this case, the principal assets of the marital estate were the family home and Charles’s retirement fund. However, the court’s findings indicate that it also considered the values assigned by the parties to their other assets, which were divided by agreement. The court then valued the two principal assets, based on the testimony of the real estate agent who appraised the home, and the actuary who evaluated the retirement benefits.

We have held that the valuation of marital assets must only be reasonable in light of the evidence submitted. In re Marriage of Johns (1989), 238 Mont. 256, 258, 776 P.2d 839, 840 (citing Milesnick, 765 P.2d at 755).

We conclude that the court did consider the value of the entire marital estate, and that the findings of fact regarding the evaluation of marital assets were supported by substantial credible evidence and were not clearly erroneous.

ISSUE 2

Did the District Court err in its distribution of the marital estate?

When we review a district court’s division of marital property, we will uphold the district court unless the findings on which that division is based are clearly erroneous. In re Marriage of Maedje (1994), 263 Mont. 262, 265-66, 868 P.2d 580, 583 (citing In re Marriage of McLean/Fleury (1993), 257 Mont. 55, 849 P.2d 1012). If the district court’s findings of fact are not supported by substantial evidence, they are clearly erroneous. Interstate Production Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. If the district court’s findings of fact upon which it bases its division of marital property are supported by substantial credible evidence and are not clearly erroneous, £‘[t]his Court will not alter the trial court’s decision unless there is an abuse of discretion.” Maedje, 868 P.2d at 583 (citing In re Marriage of Scoffield (1993), 258 Mont. 337, 852 P.2d 664).

Section 40-4-202, MCA, governs the division of property in a dissolution of marriage. That section provides, in pertinent part, that in a dissolution proceeding assets belonging to both parties shall be distributed equitably. Section 40-4-202, MCA, sets forth the factors to be considered in apportionment of marital assets. That section provides in part that:

(1) ... In making apportionment, the court shall consider the duration of the marriage ... the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties .... The court shall also consider the contribution or dissipation of the value of the respective estates and the contribution of a spouse as a homemaker or to the family unit. In dividing property acquired prior to the marriage; properly acquired by gift, bequest, devise, or descent ... the court shall consider those contributions of the other spouse to the marriage, including:
(a) the nonmonetary contribution of a homemaker;
(b) the extent to which such contributions have facilitated the maintenance of this property ....

In its apportionment of the marital assets, the District Court took these factors into account, including the parties’ ages, health, occupations, employability, ability to earn income, and liabilities. In its apportionment of the value of the marital home, the District Court took into account the differences in the parties’ income and their ability to obtain assets in the future. The District Court also took into account the fact that Priscilla, as primary caretaker of Douglas, would need a home in which to raise their child. The District Court considered that two-thirds of Charles’s retirement account was earned during the marriage, and on that basis, concluded that Priscilla is equitably entitled to 35 percent.

We conclude that the District Court’s apportionment of the marital assets was supported by substantial evidence and that its findings are not clearly erroneous.

ISSUE 3

Did the District Court err when it awarded Priscilla a fixed percentage of Charles’s retirement benefit?

The standard of review of a district courts division of marital property is as set forth in the previous section. We have defined substantial evidence as “ ‘evidence that a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.’ ” In re Marriage of Davies (Mont. 1994), 880 P.2d 1368, 1372, 51 St. Rep. 929, 932 (quoting Barrett v. Asarco, Inc. (1990), 245 Mont. 196, 200, 799 P.2d 1078, 1080).

“It is well established in this state that retirement benefits are part of the marital estate ....” Rolfe v. Rolfe (1988), 234 Mont. 294, 296, 766 P.2d 223, 225 (citing Karr v. Karr (1981), 192 Mont. 388, 628 P.2d 267). Therefore, the retirement plan in this case is properly part of the marital estate. The question is how to equitably divide the pension plan. We have held that “[generally, the proper test for determining the value of a pension is the present value.” Rolfe, 766 P.2d at 225 (citing In re Marriage of Bowman (1987), 226 Mont. 99, 108, 734 P.2d 197, 203).

In this case, the District Court utilized the services of an actuary to determine the present value of Charles’s retirement plan with the IRS.

Under the “time rule,” retirement benefits are usually divided upon their receipt. A spouse, therefore, is entitled to increases or accruals on his or her interest in the retirement plan because of the delay in receiving that interest. Rolfe, 766 P.2d at 226 (citing McNamara Dividing Pension Benefits Upon Divorce, ALI-ABA Course Materials Journal, No. 2, 33, 42 (1983)).

In this case, the District Court held that Charles’s retirement benefit with the IRS was part of the marital estate because two-thirds of this retirement benefit was earned during the parties’ marriage. Testimony by an actuary determined the present value of Charles’s retirement benefit. Hendrickson testified that the present value of Charles’s retirement benefit is $263,530. Hendrickson assumed that Charles would retire at age 55 after 30 years of service with the IRS. According to Hendrickson, if Charles retired at age 62, the present value of his retirement benefit would be $154,144, including cost of living adjustments. Without cost of living adjustments, the present value of Charles’s retirement fund at age 62 would be $119,969.

The District Court used this testimony to determine the value of Charles’s retirement. Applying the time rule to Charles’s retirement benefit, the District Court determined that 20 of the 30 years of service required for federal retirement was earned during the parties’ marriage. On this basis, and taking into consideration Priscilla’s earning capacity and the length of the parties’ marriage, the District Court issued a qualified domestic relations order in which it awarded Priscilla 35 percent of Charles’s retirement benefit.

Priscilla also bears the risk of unforeseen contingencies which may affect Charles’s benefits. Testimony by the actuary established that the value of the retirement benefit is greatest when it is taken at age 55, and the value declines if it is taken after age 55. If Charles delays his retirement until after age 55, Priscilla will receive less. If Charles should die prematurely and not achieve 30 years of service with the IRS, she will also receive less.

Substantial credible evidence supports the District Court’s findings regarding its apportionment of Charles’s retirement benefits, and we conclude that they are not clearly erroneous.

The judgment of the District Court is affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MONTE CHALMERS BOSTON, Defendant and Appellant
    No. 93-578.
    Submitted on Briefs August 25, 1994.
    As Corrected on Denial of Rehearing March 2, 1995.
    Decided November 21, 1994.
    51 St.Rep. 1142.
    269 Mont. 300.
    889 P.2d 814.

      For Appellant: William F. Hooks, Appellate Defender Office, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Kathy Seeley, Assistant Attorney General, Helena; Robert M. McCarthy, Butte-Silver Bow County Attorney, Brad Newman, Deputy County Attorney, Butte.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Defendant Monte Chalmers Boston, while a parolee, was charged in the Second Judicial District Court for Silver Bow County with the offense of burglary, in violation of § 45-6-204(1), MCA. In a related case, also commenced in the District Court for Silver Bow County, Boston was charged with three counts of arson in violation of § 45-6-103(1), MCA; and eight counts of felony theft and one count of misdemeanor theft, in violation of § 45-6-301(l)(b), MCA. Pursuant to a written plea agreement, Boston pled guilty to felony burglary in one case, and arson and felony theft in the other case, but reserved his right to appeal. Boston was sentenced to 35 years in prison with 10 years suspended and 227 days credit for time served. Boston’s sentence includes time for his status as a persistent felony offender. Boston appeals the District Court’s denial of his motions to suppress evidence taken from warrantless searches of his home and storage garage. We affirm.

We find the following issue dispositive on appeal:

Did the District Court err when it denied defendant’s motions to suppress evidence taken from warrantless searches of his home and storage garage?

FACTUAL BACKGROUND

Boston was paroled in 1990 and, as such, was subject to the requirements of a parolee as set forth by the Board of Pardons. When Boston was paroled, he signed an agreement stating that he would abide by the rules and conditions of parole. Paragraph 7 of the State of Montana Conditions of Parole states that “[u]pon reasonable cause, you shall, while on parole or probation, submit to a search of your person, vehicle or residence by a Probation/ Parole officer, at any time, without a warrant.” Boston signed this form and specifically initialed this particular condition of parole, signifying that he would abide by these conditions. Boston’s parole was supervised by parole officer John Kelly.

On approximately January 14, 1993, the Union Bus Terminal in Butte was burglarized and the locker and luggage area of the terminal was ransacked.

On January 20,1993, an arson fire occurred in the National Center for Appropriate Technology (NCAT). Tire marks found outside the NCAT building were consistent with the tread and size of the tires on Boston’s vehicle. In addition, a federal agent responding to the NCAT fire at approximately 4 a.m. noticed that Boston’s vehicle, which was parked near his residence, had recently been used. There was frost on all the vehicles in the area except his.

After listening to the audio tapes and reviewing the evidence linking Boston to the NCAT fire, probation officer Kelly authorized a search of Boston’s residence and obtained a warrant for his arrest. After his arrest, Boston verbally consented to a search of his residence.

On January 19,1993, Kelly was asked by the FBI to review audio tapes. These audio tapes included a recorded phone call in which an individual attempted to extort money from the Mormon Church by purporting to have information regarding an earlier arson fire at the Mormon Church. This individual told church officials that there would be another fire and that he wanted to be paid $10,000 for exact details concerning the fire. Kelly identified the voice on the audio tape as being that of Boston.

Kelly was present for much of the search of Boston’s residence but did not actually perform the search.

In February 1993, probation officer Kelly was again contacted by law enforcement agencies and informed that Boston was renting a garage at a location separate from his residence. Because at the time his residence was searched Boston had informed law enforcement officials that he had no other property or storage areas, Kelly authorized a search of the garage. Kelly was present at the scene of the storage garage search, but did not actually perform the search.

On February 19, 1993, an information was filed in the Second Judicial District Court for Silver Bow County, charging Boston with felony burglary. On March 11,1993, another information was filed in the Second Judicial District Court for Silver Bow County, charging Boston with three counts of arson, eight counts of felony theft, and one count of misdemeanor theft.

Separate attorneys were appointed to represent Boston on these charges. Both attorneys filed motions to suppress all evidence obtained from the warrantless searches of Boston’s home and storage garage. The motions to suppress were deified.

On September 2,1993, pursuant to a plea agreement, Boston pled guilty to burglary in one case, and guilty to arson and felony theft in the other. He was sentenced to 35 years in prison with 10 years suspended, and was given 227 days credit for time served. This sentence included time for Boston’s status as a persistent felony offender. In each of the two cases, Boston reserved his right to appeal the denial of his motions to suppress.

DISCUSSION

Did the District Court err when it denied defendant’s motions to suppress evidence taken from warrantless searches of his home and storage garage?

When we review a district court’s denial of a motion to suppress, we will uphold the district court if there is substantial credible evidence to support the court’s findings of fact, and if those findings were correctly applied as a matter of law. State v. Rushton (1994), 264 Mont. 248, 254, 870 P.2d 1355 (citing State v. Beach (1985), 217 Mont. 132, 147, 705 P.2d 94, 103).

The Administrative Rules of Montana in effect at the time of Boston’s parole, and the State of Montana Conditions of Parole, govern Boston’s conditions of parole and authorize warrantless searches of parolees based upon reasonable cause. The Administrative Rule in effect at that time, 20.25.702(11), ARM, which mirrored Paragraph 7 of Boston’s conditions of parole, provides that:

Search of Person or Property — The parolee, while on parole, shall submit to a search of his person, automobile or place of residence by a parole officer, at any time of the day or night, with or without a warrant, upon reasonable cause as may be ascertained by a parole officer.

In addition to this Administrative Rule, Boston’s conditions of parole also authorized warrantless searches of his home or person based solely upon reasonable cause. Boston signed and agreed to these conditions of parole on August 14, 1990. These conditions of parole state, in pertinent part, at Paragraph 7, that “[u]pon reasonable cause ... [the parolee] shall, while on parole... submit to a search of... [his] person, vehicle or residence by a Probation/Parole Officer, at any time, without a warrant.”

The District Court, in its June 11 and 21, 1993, orders denying Boston’s motions to suppress, relied on Kelly’s testimony concerning the circumstances surrounding his decision to authorize the searches. In its orders, the District Court found that Kelly had reasonable cause to authorize the searches.

The United States Supreme Court, in Griffin v. Wisconsin (1987), 483 U.S. 868, 107 S. Ct. 3164, 97 L. Ed. 2d 709, held that a warrantless search of a probationer’s [or parolee’s] home, pursuant to a Wisconsin statute providing for such searches on reasonable grounds, satisfies the Fourth Amendment. Griffin, 483 U.S. at 872, 107 S.Ct. at 3167-68. Although searches usually require probable cause and a warrant, there are certain exceptions to the warrant requirement. “[W]e have permitted exceptions when ‘special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’ ” Griffin, 483 U.S. at 873, 107 S.Ct. at 3168 (quoting New; Jersey v. T.L.O. (1985), 469 U.S. 325, 351, 105 S.Ct. 733, 748, 83 L.Ed.2d 720).

Parolees are still being punished and they do not enjoy absolute freedom.

It is always true of probationers (as we have said it to be true of parolees) that they do not enjoy ‘the absolute liberty to which every citizen is entitled, but only... conditional liberty properly dependent on ... special... restrictions.’

Griffin, 483 U.S. at 874, 107 S.Ct. at 3169 (quoting Morrissey v. Brewer (1972), 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484).

This Court adopted the reasoning in Griffin in State v. Burke (1988), 235 Mont. 165, 766 P.2d 254. In Burke, we held that “[t]his special need [of permitting a greater impingement on the rights of probationers and parolees, as stated in Griffin] is equally applicable to the State of Montana.” Burke, 766 P.2d at 256. “To impose awarrant requirement for residential searches ... would artificially raise a probationer’s [or parolee’s] privacy interest to a level inconsistent with conditional liberty status.” Burke, 766 P.2d at 257. Aparolee has conditional liberty and has a reduced privacy interest. In Burke, we stated that due to the large land mass and mostly rural population of Montana, it would be impossible for the parole officers to supervise every probationer and, as such, police officers are needed to assist probation officers. Burke, 766 P.2d at 257.

Therefore, police in Montana are an extension of the parole and probation system. In this case, the searches of Boston’s home and storage garage are not facially invalid because they were actually performed by police officers rather than the parole officer.

We have held that “[t]he probation officer must be able to supervise the probationer [or parolee], and upon his judgment and expertise, search the probationer’s [or parolee’s] residence or cause it to be searched.” Burke, 766 P.2d at 257 (emphasis added). In the case at hand, officer Kelly supervised Boston and caused his house and storage garage to be searched.

In State v. Hall (1991), 249 Mont. 366, 369, 816 P.2d 438, 440, this Court reiterated that “[in] State v. Burke ... this Court, following Griffin v. Wisconsin ... set forth the standard for probationary searches.” That standard is the reasonable grounds standard, which is less strict than the probable cause standard. Hall, 816 P.2d at 440.

The warrantless search of a parolee’s residence or storage areas, such as Boston’s, does not require probable cause, but only reasonable grounds. In this case, Boston’s probation officer had evidence, such as audio tapes, which indicated firsthand knowledge of an arson fire at the Mormon church, and law enforcement observations linking Boston to a second fire caused by arson. Parole officer Kelly clearly had reasonable grounds to suspect parole violations which justified the warrantless searches of Boston’s home and storage garage.

There is substantial evidence to support the District Court’s finding that officer Kelly had reasonable grounds to authorize the searches of Boston’s home and storage garage.

We conclude that the District Court did not err when it denied the motion to suppress evidence gathered dining the searches of Boston’s home and storage garage.

The judgment of the District Court is affirmed.

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


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TIMOTHY MAGUIRE HATFIELD, Defendant and Appellant.
    No. 93-650.
    Submitted on Briefs October 20, 1994.
    Decided January 18, 1995.
    52 St.Rep. 1.
    269 Mont. 307.
    888 P.2d 899.

      For Appellant: Ann C. German, Libby.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena; Scott B. Spencer, Lincoln County Attorney, Libby.
   JUSTICE NELSON

delivered the Opinion of the Court.

Appellant Timothy Maguire Hatfield appeals from an order of the Nineteenth Judicial District Court, Lincoln County, denying his motion for a new trial. We affirm.

The issues on appeal are:

1. Whether the District Court abused its discretion in denying Hatfield’s motion for a new trial.

2. Whether cumulative error warrants a new trial.

This case was previously before us in State v. Hatfield (1993), 256 Mont. 340, 846 P.2d 1025 (Hatfield I), wherein Hatfield appealed his convictions of the felony offenses of criminal sale of dangerous drugs and conspiracy to sell dangerous drugs. In Hatfield I, we upheld the conviction for the criminal sale of dangerous drugs, and reversed the conviction for conspiracy to sell dangerous drugs.

The facts giving rise to the conviction for criminal sale of dangerous drugs are that Hatfield sold a small amount of marijuana to Hal Turner. Turner had been hired by the Lincoln County Sheriff’s Department as an undercover agent to buy drugs from anyone who would sell them. On the morning of December 30,1990, Hatfield and another individual, Robert Sprague, went to Turner’s apartment, where according to Turner, Hatfield sold him a small amount of marijuana for $30. It is undisputed that, at the time of the sale, the Lincoln County Sheriff’s Office was unaware of the transaction and was not supervising Turner; nor was Turner wearing a body wire. After the sale, Turner contacted Detective Klint Gassett, informed him of the transaction and turned the marijuana over to him. Equipped with an electronic monitor, Turner went to Hatfield’s residence that evening in an effort to get a taped conversation with Hatfield concerning the earlier drug transaction.

Hatfield denies selling the marijuana to Turner, and testified at trial that Sprague was the person who sold the marijuana to Turner. Hatfield claimed that Turner gave the $30 to him, rather than Sprague, because Sprague owed Hatfield money. On January 30, 1992, a jury found Hatfield guilty of one count of sale of criminal sale of dangerous drugs, and one count of conspiracy to sell dangerous drugs. Hatfield appealed his conviction to this Court and as stated above, we affirmed the conviction for the criminal sale of dangerous drugs, reversed the conspiracy conviction, and remanded the case to the District Court for resentencing. Hatfield J, 846 P.2d at 1025.

We issued the Remittitur on March 1,1993. Thereafter, on March 8,1993, Hatfield filed a pro se motion for a new trial alleging among other things, that the State failed to disclose the employment contract between Turner and the Lincoln County Sheriff’s Office. Counsel was appointed for Hatfield on October 4,1993, and ahearing on his motion for a new trial was held on November 22,1993. The parties stipulated to the following facts in a document entitled “Stipulation Regarding Discovery of Contract of Undercover Agency,” which states:

Defendant has moved the court for an Order granting to him a new trial due to newly discovered evidence, discovered following his first trial, to wit, the written contract of employment between the Lincoln County Sheriff’s Office and the undercover agent, Hal Turner. It is stipulated that defendant’s first attorney, Don Shaffer, did not request the production of that contract from the State when he was representing defendant. The reason for not making that request was that, due to previous rulings (in other cases in which Mr. Shaffer was defending persons accused of selling drugs to undercover agents working for LCSO), Mr. Shaffer believed that such a request would be futile.

At the hearing, the State argued that Turner’s employment contract was not “newly discovered evidence” because the defense knew Turner had an employment contract with the Lincoln County Sheriff’s Office, and in fact at trial defense counsel cross examined Turner about the terms of the contract. After considering the arguments of counsel, the District Court denied the motion for a new trial at the conclusion of the hearing, and this appeal followed.

DISCUSSION

I. NEW TRIAL

Hatfield raises three arguments in support of his motion for a new trial. First, he maintains that the State’s “suppression of the employment contract” was a violation of its duty to disclose exculpatory evidence, that the suppression prejudiced Hatfield, and that he is therefore entitled to a new trial. Second, Hatfield contends that Turner violated the terms of the contract, and the State’s knowledge of, and acquiescence in, this violation was government conduct so outrageous that it violated his due process rights. Third, he alleges that he did not discover the existence of Turner’s employment contract with the Lincoln County Sheriff’s Office until after trial, and therefore he is entitled to a new trial based on this newly discovered evidence.

STANDARD OF REVIEW

A district court may grant a criminal defendant’s motion for a new trial “if required in the interest of justice.” Section 46-16-702, MCA. The decision whether to grant or deny a motion for a new trial rests within the sound discretion of the trial court, and will not be overturned on appeal unless an abuse of discretion is shown. State v. Haskins (1992), 255 Mont. 202, 210-11, 841 P.2d 542, 547, citing State v. DeMers (1988), 234 Mont. 273, 278, 762 P.2d 860, 863-64.

A. EXCULPATORY EVIDENCE

Hatfield argues that the employment contract was exculpatory evidence, and therefore, the State had an affirmative duty to disclose the contract according to the rule set forth in Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and according to the State’s statutory disclosure obligations set forth in § 46-15-322, MCA (1989).

According to Brady, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218. In addition, §§ 46-15-322(l)(e), and 46-15-321(2), MCA (1989), provide that the State has an affirmative duly to disclose, upon request, “all material or information that tends to mitigate or negate the accused’s guilt as to the offense charged or that would tend to reduce his punishment therefor.”

Therefore, according to Brady, and §§ 46-15-322(l)(e), and 46-15-321(2), MCA (1989), the State would only have an affirmative duty to disclose the contract if: (a) the defense requested the information; Section 46-15-321(2), MCA (1989); and (b) if the contract could be genetically referred to “exculpatory evidence,” — which we have previously defined as evidence which tends to clear the accused of guilt and vitiate the conviction. State v. Patterson (1983), 203 Mont. 509, 513, 662 P.2d 291, 293; State v. Craig (1976), 169 Mont. 150, 153, 545 P.2d 649, 651.

Initially, we note that while the defense admitted in the “Stipulation Regarding Discovery of Contract of Undercover Agency,” that it did not request production of the employment contract, the State affirmatively represented at the omnibus hearing that it had provided Hatfield with everything which would tend to negate guilt, or tend to reduce his punishment. Therefore, the issue of whether Hatfield actually requested the contract is irrelevant.

Hatfield alleges the employment contract was exculpatory evidence because it would have evidenced Turner’s violation of the contract’s terms. According to Hatfield, if he had been able to impeach Turner regarding his alleged violation of the contract, he could have shown that Turner’s account of the sale was “false or susceptible to falsity,” thereby supporting Hatfield’s allegation of innocence.

The employment contract provisions which Hatfield claims Turner breached provide that Turner was “not to handle any drugs at any time unless specifically directed to do so by the investigating officer,” and that he was “not to participate in any investigations or any criminal activities unless the investigation is being directly supervised by a member of the Lincoln County Sheriff’s Department.” Therefore, according to Hatfield, Turner violated the employment contract because the Lincoln County Sheriff’s Office was not supervising Turner at the time of the sale, and because Turner possessed and used marijuana during the sale. Hatfield concludes that if he had known of the contract’s terms before the trial, he could have presented evidence of Turner’s alleged violation of the contract.

However, the record does not support Hatfield’s argument. Turner had been directed to purchase drugs from any person who would sell them to him. Turner testified that he was not under the immediate supervision of the sheriff’s office and was not wearing a body wire at the time of the sale because Hatfield and Sprague showed up unexpectedly at his apartment. Turner also testified he contacted Detective Gassett after the sale, and arranged to turn the marijuana over to him. Later that day, Turner went to Hatfield’s residence equipped with a body wire, to verify the sale. In addition, Hatfield was allowed to present his version of events concerning the sale, and the jury apparently believed the State’s account. Accordingly, we conclude that the employment contract would not have tended to negate Hatfield’s guilt or vitiated his conviction. Therefore the State had no duty to affirmatively disclose its existence under the Brady rule or under § 46-15-322(l)(e), MCA (1989).

Finally, we note that the State had no obligation to disclose the employment contract under the other provisions of § 46-15-322, MCA (1989), according to our recent opinion in State v. Licht (1994), [266 Mont. 123], 879 P.2d 670. Although Licht addressed § 46-15-322, MCA, according to its terms under the 1991 Montana Code Annotated, and the 1989 statute applies in this case, the 1991 amendments to § 46-15-322, MCA, did not substantially change the statute. Therefore, Licht’s reasoning is relevant here.

In Licht, we held that the State has the obligation to disclose all evidence whether inculpatory or exculpatory if listed in subsections (l)(a) through (d) and (2)(a) through (c), of that statute, reasoning that it is not up to the State to determine whether any such information is inculpatory or exculpatory. Licht, 879 P.2d at 673-74. Here the employment contract is not the type of material or information listed in § 46-15-322, MCA, subsections (l)(a) through (d) and (2)(a) through (c), and accordingly, there was no affirmative duty on the part of the State to provide the contract to the defense under those subsections.

B. OUTRAGEOUS GOVERNMENT CONDUCT

Hatfield also contends that the State’s knowledge of, and acquiescence in, Turner’s alleged violation of the employment contract, is outrageous government conduct which resulted in a denial of Hatfield’s due process rights. This Court has previously recognized that illegal conduct of law enforcement may violate the due process rights of a defendant. Haskins, 841 P.2d at 546. However, having concluded that Turner did not violate the terms of his employment contract, it can hardly be argued that he acted illegally. Therefore, we conclude that this argument is without merit.

C. NEWLY DISCOVERED EVIDENCE

Hatfield maintains that he did not know of the employment contract’s existence until after trial, and that if he had been able to present evidence concerning its terms, and Turner’s alleged violation of those terms, it would have affected the outcome of the trial.

This Court analyzes motions for a new trial on the basis of newly discovered evidence according to a six-part test set forth in State v. Greeno (1959), 135 Mont. 580, 586, 342 P.2d 1052, 1055, and discussed more recently in Matter of J.R. T. (1993), 258 Mont. 520, 522, 853 P.2d 710, 711. We need to consider only the first factor: the evidence must have come to the knowledge of the applicant since the trial. We conclude that Hatfield was aware of the employment contract prior to trial and therefore his argument is without merit.

We base our conclusion primarily on the “Stipulation Regarding Discovery of Contract of Undercover Agency,” which stated that Hatfield’s first attorney, Donald Shaffer, did not request the document because he thought it would be futile to do so. In addition, it appears that Hatfield’s counsel at the trial level, David Harman, was also aware of the terms of the employment contract, as he cross examined Turner concerning the compensation terms of his employment, the fact that Turner used marijuana during the investigation, and that Turner did not have an electronic transmitter or body wire at the time Hatfield sold him the marijuana.

Accordingly, it is apparent that Hatfield had knowledge of the employment contract at the time of the trial, and therefore he cannot now complain that it is newly discovered evidence. State v. Morris (1988), 230 Mont. 311, 320-21, 749 P.2d 1379, 1384-85.

Having determined that Hatfield was aware of the employment contract before trial, that the State had no affirmative duty to disclose the contract, and that the contract was not exculpatory in any event, we thereby hold that the District Court did not abuse its discretion in denying Hatfield’s motion for a new trial.

II. CUMULATIVE ERROR

Hatfield argues in passing, that cumulative error occurred because the jury heard evidence of the conspiracy charge, and that conviction was reversed in Hatfield I, and because the State failed to disclose the employment contract. According to Hatfield, this cumulative error entitles him to a new trial. However, given our conclusion that the State had no affirmative duty to disclose the employment contract, we are not persuaded by Hatfield’s cursory argument and hold that he is not entitled to a new trial on the basis of cumulative error.

AFFIRMED.

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


text:
    JANICE WETCH, Plaintiff and Respondent, v. UNIQUE CONCRETE CO. a Montana Corporation, Defendant and Appellant.
    No. 94-176.
    Submitted on Briefs October 28, 1994.
    Decided January 18, 1995.
    52 St.Rep. 5.
    269 Mont. 315.
    888 P.2d 425.
    For Appellant: Calvin J. Stacey, Stacey & Walen, Billings.
    For Respondent: Thomas M. Monaghan, Lucas & Monaghan, Miles City.
   JUSTICE NELSON

delivered the Opinion of the Court.

Unique Concrete, Co., (Unique) appeals from a special jury verdict in favor of Janice Wetch (Janice) finding that Janice’s personal injuries were caused 51% by Unique’s negligence and 49% by J anice’s own negligence and awarding total damages of $200,000. Unique contends that the District Court erred in granting Janice’s Motion in Limine restricting evidence of negligence attributable to Janice’s employer, Dr. William Walhck (Dr. Walhck). We affirm.

ISSUE

The issue on appeal is whether the District Court properly applied § 27-1-703(4), MCA, (1987), in granting Janice’s Motion in Limine.

FACTUAL AND PROCEDURAL BACKGROUND

At the time she was injured, Janice was the full time receptionist, office worker and assistant to Dr. Walhck, a Miles City chiropractor. Janice had worked for Dr. Walhck, first on a part-time basis and later, full time, since August 1984. She and Dr. Walhck were the only two persons who worked in his small, Main Street office building.

In 1989, desiring to add space to his offices, Dr. Walhck hired a local Miles City contractor to remodel the building. Prior to the remodeling, the office building had two doors, one at the front of the building facing Main Street, primarily used by patients, and another door at the rear leading to the parking lot. The rear door was routinely used by Dr. Walhck and Janice. As part of the remodeling project, Unique was hired as one of the subcontractors and was responsible for removing the concrete steps outside the rear door of the building.

Before Unique began work, Larry Kuchynka (Larry), Unique’s president, had a conversation with Dr. Walhck, in Janice’s presence, in which Larry expressed his concern about the safety hazard posed by the removal of the steps outside the rear door. Larry suggested various measures that could be taken to mitigate the danger, including barricading the door. Dr. Walhck did not want to barricade the door because of the need for ventilation. However, he assured Larry that a warning sign would be placed on the door, that the door would be dead-bolted during regular business hours and that he (Dr. Walhck) “would take care of it.” Relying on Dr. Wallick’s statements, Unique did nothing to secure the door and proceeded to remove the concrete steps leaving a vacant hole five to six feet deep under the door where the steps had been.

Janice testified that she recalled discussing the door situation with Dr. Wallick and that she tried to keep the door locked. Moreover, knowing that the steps had been removed, during the week before her accident, Janice changed her routine and began using the front door to enter and leave work. Nonetheless, at about noon on September 25, 1989, out of forgetfulness or force of habit, Janice opened outward the rear door of the office, stepped into the five to six feet hole where the steps had been, and was seriously injured. Janice subsequently received benefits through workers’ compensation insurance carried by Dr. Wallick.

In November 1991, Janice filed her complaint against Unique alleging negligence and seeking special and general damages for her injuries. Prior to trial, in its motion for summary judgment, Unique argued that Dr. Wallick’s failure to secure the door was negligence and was an independent, superseding, intervening cause which absolved Unique from liability for Janice’s injuries. In response, based on § 27-1-703(4), MCA, (1987), Janice filed her Motion in Limine to exclude from consideration by the jury argument or evidence of any conversation between Larry and Dr. Wallick that Wallick would keep the rear door locked during construction; that Dr. Wallick forgot to lock the door approximately one and one-half hours before Janice’s fall; and that Dr. Wallick was solely or partially at fault with regard to Janice’s fall. Janice’s motion was briefed and argued, and, on the first day of trial was granted by the District Court.

Trial began in February 1994. Janice’s attorney called Larry and elicited testimony to the effect that he (Larry) was concerned about the hazardous condition posed by the removal of the steps, that he discussed those concerns with Dr. Wallick in Janice’s presence, that various measures could be taken to mitigate the danger, but that he (Larry) did nothing to secure the door. Pursuant to the District Court’s order granting Janice’s Motion in Limine, however, and despite Unique’s offer of proof, neither Larry nor Wallick were allowed to detail their conversation about the necessity to barricade the rear door; that Dr. Wallick had refused to have the door barricaded; that Dr. Wallick had agreed to lock the door; and that Larry had relied on Dr. Wallick’s statements in that regard as the reason why Unique did not take any measures to secure the door.

DISCUSSION

On appeal, Unique contends that because the District Court granted Janice’s Motion in Limine, it was denied its right to a fair trial. Unique argues that the jury was precluded from hearing all of the facts as to how and why Janice’s accident occurred and that it was unable to present factual support for its defenses that it was not negligent and that, even if it was, its negligence was not the proximate cause of Janice’s injuries, Dr. Wallick’s negligence being an independent, superseding and intervening cause.

Janice maintains that the District Court correctly granted her Motion in Limine and kept the offered argument and evidence from the jury because amendments to § 27-1-703, MCA, made by the 1987 legislature, specifically removed from consideration and determination by the fact finder any amount of negligence on the part of the injured person’s employer to the extent that such employer had tort immunity under Montana’s Workers’ Compensation Act. We conclude that the District Court’s application of § 27-1-703(4), MCA, to prohibit the offered testimony and evidence from being considered by the jury was correct.

The issue raised in this case is one of first impression. While this Court recently held certain portions of § 27-1-703(4), MCA, (1987) unconstitutional, Newville v. State of Montana (1994), [267 Mont. 237], 883 P.2d 793, our decision in that case did not address the language of the statute at issue here, nor is there any constitutional issue raised in this appeal with respect to that part of the statute. Rather, the issue here involves one of merely applying the clear and unambiguous requirements of the statute to the facts before the court.

In pertinent part, § 27-1-703(4), MCA, (1987), provides:

(4)... However, in attributing negligence among persons, the trier of fact may not consider or determine any amount of negligence on the part of any injured person’s employer or coemployee to the extent that such employer or coemployee has tort immunity under the Workers’ Compensation Act or the Occupational Disease Act of this state, of any other state, or of the federal government.

That language, along with other provisions, was added to § 27-1-703, MCA, by the 1987 Legislature as a part of its tort reform legislation. See Newville, 883 P.2d at 799.

There is nothing ambiguous or unclear about the statutory language at issue. The legislature has provided that the fact finder may not “consider or determine any amount of negligence” on the part of the injured person’s employer to the extent the employer has tort immunity under the Workers’ Compensation Act.

It is undisputed that Dr. Wallick was Janice’s employer and that he is immune from tort liability for her injuries because she was covered by and received benefits under his workers’ compensation insurance. See, Article II, Section 16, Constitution of the State of Montana and § 39-71-411, MCA. Unique, nevertheless, argues that it should be able to completely absolve its own liability by offering evidence, argument and instruction to the jury that it did not secure the rear door because Dr. Wallick said he would take care of it; because Dr. Wallick refused to allow Unique to barricade the door; because Dr. Wallick negligently failed to secure the rear door himself; and because Dr. Wallick’s negligence was the proximate cause of Janice’s injuries.

Obviously, Unique can only prevail in that defense if the trier of fact is, first, allowed to “consider” evidence of Dr. Wallick’s alleged negligent acts and omissions from testimony of what Dr. Wallick said he would do and from what he then actually did or failed to do, and, second, if the trier of fact is then allowed to “determine” from that evidence that it was Dr. Wallick’s negligence, and not Unique’s, that proximately caused Janice’s injuries. That, of course, is precisely the sort of evidence that the statute expressly prohibits from going to the jury. Because Dr. Wallick is absolutely immune from tort liability for her injuries, any amount of his negligence which caused or contributed to Janice’s injuries cannot be considered or determined by the jury. Dr. Wallick’s negligence is simply not a part of the liability or damages equation.

While the parties argue for and against the fairness of the statute and the rationale underlying its adoption, that is not the issue. Moreover, we have considered the authorities cited by Unique and do not find them persuasive. While Judge Battin’s interpretation of the statutory language in Weaselboy v. Ingersoll-Rand (April 10,1991) 10 Mont. Fed. Rpt. 41, differs from ours, we are not constrained to follow the interpretations of Montana’s statutes by the federal judiciary, especially where the statutory language at issue has not been previously interpreted by this Court. The statutory prohibition is clear and unambiguous, and no argument has been advanced that the portion of the statute at issue is unconstitutional.

Absent such a challenge, it is not the prerogative of this or of any other court to construe a clear and unambiguous legislative enactment so as to defeat its obvious mandate. Accordingly, we are compelled to hold that the District Court correctly applied § 27-1-703(4), MCA, (1987), in granting Janice’s Motion in Limine.

AFFIRMED.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT and WEBER.


author: JUSTICE HUNT

text:
    WELDEN DAINES and GREAT FALLS LIMITED, Plaintiffs and Appellants, v. KENNETH KNIGHT, GEORGE BUZZAS, and NORTHWEST MOTOR INNS, Defendants and Respondents. GRACIE OIL COMPANY, INC., a corporation, Plaintiff, v. WELDON DAINES and GREAT FALLS LIMITED, a Utah limited partnership, Defendants.
    No. 91-432.
    Submitted on Briefs October 28, 1994.
    Rehearing Denied February 17, 1995.
    Decided January 18, 1995.
    52 St.Rep. 8.
    269 Mont. 320.
    888 P.2d 904.

      For Appellants: Ward E. Taleff and Kevin C. Meek, Alexander, Baucus & Linnell, Great Falls.
    For Respondents: Turner Graybill, Graybill, Ostrem, Warner & Crotty, Great Falls.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellants Welden L. Daines and Great Falls Limited appeal from the findings of fact, conclusions of law, and final judgment of the Eighth Judicial District Court, Cascade County, denying the claims of appellants and granting judgment in favor of respondents Kenneth Knight, George Buzzas, and Northwest Motor Inns.

Affirmed.

Appellants raise the following issues on appeal:

1. Did the District Court err when it concluded that the September 16,1981, option agreement between the parties was a sales contract rather an option contract?

2. Did the District Court err when it concluded that capital contributions were not required from respondents?

3. Did the District Court err when it concluded that respondents were entitled to recover damages under their counterclaim?

4. Did the District Court err when it awarded attorney fees and costs to respondents?

Northwest Motor bans is a Montana limited partnership formed on June 3, 1976, for the purpose of acquiring, developing, and operating a Sheraton franchise in Great Falls. The original general partners were Welden Daines, George Buzzas, Kenneth Knight, and Harlan Nelson. Buzzas and Knight each held a one-third interest, while Nelson held a 16-2/3 interest, and Daines held a 15-2/3 interest.

Pursuant to the June 3,1976, partnership agreement, Buzzas was the owner of the real property upon which the hotel was to be situated. Knight acted as the architect for the project. Daines performed the accounting services for the hotel, and Nelson managed the hotel jointly with Daines.

Following the May 4, 1981, death of Nelson, Knight and Buzzas terminated the partnership agreement against the wishes of Daines. The Eighth Judicial District Court held that Nelson’s death was grounds for termination, but stayed execution of its order to allow Daines to appeal to this Court. Pending appeal, the parties resolved their differences on September 16, 1981, by executing the following five agreements:

1. Agreement Reconstituting Partnership: The parties agreed that Northwest Motor Inns would be reconstituted with Buzzas, Gracie Oil Company, and Welden L. Daines/Great Falls, Ltd. as general partners.

2 .Agreement Reallocating Income andLosses: Gracie Oil Company and Buzzas agreed to transfer their shares of income to Daines, and Daines agreed to bear the losses attributable to Gracie Oil Company and Buzzas with the exception of any depreciation or investment credits. Northwest Motor Inns agreed to pay Gracie Oil Company and Buzzas $7875 per month as partners’ salaries from September 1981, through January 1985. Default on any payment to either Gracie Oil Company or Buzzas was a default of the entire agreement. Any default unremedied for 30 days, after notice, resulted in termination of the agreement, and each party would then return to its original partnership interest in income and losses.

3. Option Agreement: Buzzas and Gracie Oil Company granted Daines an option to purchase their two-thirds interest in the partnership in December 1985. Daines agreed to pay Buzzas and Gracie Oil Company $100,000 with the balance of $1,400,000 due in 1986 or to be financed as stipulated. Under the financing option, any uncured default would have resulted in the return of the two-thirds partnership interest to Gracie Oil Company and Buzzas.

4. Letter Agreement Surrendering Management Control To Daines: Gracie Oil Company and Buzzas agreed not to participate in or interfere with Daines’ management of the hotel. Buzzas and Gracie Oil Company agreed to remove the names of Buzzas, Gracie Oil Company, and Knight from the signature cards of all hotel bank accounts.

5. Indemnity Agreement: Daines agreed to indemnify former partner Knight from liability or loss arising out of potential claims against Northwest Motor Inns.

In connection with the above agreements, the partnership interest of Knight in Northwest Motor Inns was transferred to Gracie Oil Company, Inc., and the partnership interest of Daines in Northwest Motor Trms was transferred to Great Falls Limited.

Beginning in the late fall of 1984, the $7875 payments to each respondent were not made as required under the terms of the agreement allocating income and losses. Respondents notified appellants of the defaults on April 4, 1985, May 3, 1985, and May 16, 1985. In an effort to keep the partnership solvent, appellants requested additional capital contributions of $230,375 from respondents. Respondents did not comply with appellants’ request. Daines contributed $150,000 to the partnership through personal loans to pay for operating expenses.

OnAugust2,1985, as a result of the uncured defaults, respondents assumed control of the partnership and the day-to-day operations of the hotel. In December 1985, appellants attempted, unsuccessfully, to complete the purchase of respondents’ two-thirds partnership interest in Northwest Motor Inns.

Appellants brought this action against Northwest Motor Inns, Gracie Oil Company, Inc., Buzzas, and Knight. Appellants sought a judicial determination that they had properly exercised their option to purchase the partnership interests of respondents in Northwest Motor Inns. In addition, appellants asked the court to determine the purchase price, and appellants sought to recover management and accounting fees. On motion of appellants, claims against Knight, and a claim to pierce the corporate veil of Gracie Oil, were withdrawn.

The court entered its final order and judgment ordering that all claims of appellants were dismissed with prejudice. In addition, the court entered judgment in favor of Buzzas in the amount of $203,477, and in favor of Gracie Oil in the amount of $203,477. The court awarded respondents $102,522.50 in attorney fees and $3686.90 in costs.

Appellants appeal from the court’s findings of fact, conclusions of law, and final order and judgment.

ISSUE 1

Did the District Court err when it concluded that the September 16,1981, option agreement between the parties was a sales contract rather than an option contract?

The standard of review of a district court’s findings of fact is whether the findings are clearly erroneous. Columbia Grain International v. Cereck (1993), 258 Mont. 414, 417, 852 P.2d 676, 678. In Interstate Production Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 322, 820 P.2d 1285, 1287, we adopted a three-part test to determine whether a finding of fact is clearly erroneous. The test provides that:

1. We will determine if the findings are supported by substantial evidence;

2. If the findings are supported by substantial evidence, we will determine if the district court misapprehended the evidence; and

3. If the findings are supported by substantial evidence and that evidence has not been misapprehended, this Court may still determine whether that “ ‘a finding is ‘clearly erroneous’when... a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.’ ” DeSaye, 820 P.2d 1287 (quoting United States v. U.S. Gypsum Co. (1948), 333 U.S. 364, 68 S. Ct. 525, 92 L. Ed. 746). We review conclusions of law to determine whether the district court’s conclusions were correct. In re Marriage of Barnard (1994), 264 Mont. 103, 106, 870 P.2d 91, 93 (citing In re Marriage of Burris (1993), 258 Mont. 265, 269, 852 P.2d 616, 619). We will apply the same standard of review to Issues 2 and 3.

The District Court found that Knight and Buzzas intended to sell their partnership interests to Daines following the death of Nelson. Buzzas and Knight determined that an immediate sale would deprive them of their share of depreciation of the partnership and would result in unfavorable tax consequences. On September 16,1981, the parties executed five agreements, including an option agreement, which purported to grant appellants a purchase option which could only be exercised between December 1,1985, and December 31,1985. However, the District Court found that instead of executing an option contract, the parties executed a sales contract on September 16,1981, subject to conditions precedent which were to be performed by December 31, 1985.

Under the option agreement, respondents each received $50,000 from Daines/Northwest Motor Inns upon execution. Under the terms of the agreement reallocating income and losses, Northwest Motor Inns agreed to pay respondents each a monthly salary of $7875 from September 1981 through December 31,1985. The monthly salary was determined by calculating the monthly interest on the unpaid purchase price. We note the inconsistency between the agreement which allocated $7875 per month salary to each of the two parties, and the agreement surrendering management control to Daines under which the same two parties agreed not to participate in the management of the hotel. As a result, there were no described services for which salary properly was due.

The District Court concluded that taken as a whole, the option agreement and the agreement reallocating income and losses constituted a conditional sale of respondents’interests in Northwest Motor Inns to appellants.

Appellants argue that the District Court erroneously concluded that the five documents executed on September 6, 1981, constituted an integrated agreement to sell respondents’ partnership interests subject to conditions precedent.

The language of a contract governs its interpretation if the language is clear and explicit. Section 28-3-401, MCA. A contract may be explained by reference to the circumstances under which it was made, and the matter to which it relates. Section 28-3-402, MCA. A contract must be interpreted to give effect to the mutual intention of the parties as it existed at the time of contracting. Section 28-3-301, MCA. The name given to a contract, in this case “Option Agreement,” is not conclusive as to its intent. It is the intention of the parties which is controlling, and that intention is to be determined by the applicable facts. Transcontinental Refrigeration Co. v. Figgins (1978), 179 Mont. 12, 18, 585 P.2d 1301, 1305.

Substantial testimony was offered at trial to support the District Court’s conclusion that taken as a whole, the five agreements of September 16, 1981, reflect the parties’ intention to execute a condition sale subject to conditions precedent.

Daines testified that the negotiations which resulted in the five agreements began with the premise that Daines would purchase the partnership interests of Buzzas and Knight in Northwest Motor Inns. Daines testified further that the original intent of the parties was that Daines would purchase the partnership interests of respondents through a long-term contract.

Knight, as a representative of Gracie Oil, and Buzzas testified that Daines offered to purchase their partnership interests for $700,000 each. Knight and Buzzas were advised that if they sold their interests to Daines in 1981, the depreciation recapture provisions of the Internal Revenue Code would reduce the $700,000 selling price to a $500,000 gain. To avoid this result, the parties negotiated a sale subject to conditions precedent to be performed by December 31, 1985. Knight testified that the option agreement and the agreement reallocating income and losses were negotiated together and operated in tandem to produce the desired result. The documents were drafted so that profits and losses belonged to Daines. In exchange, respondents wcrald each receive $50,000 in September 1981; a monthly salary of $7875; and $700,000 in December 1985.

The parties agreed that respondents would not interfere on any level with Daines’management of the hotel. Also, the names of Buzzas and Knight were removed from the signature cards of all partnership bank accounts. From September 16, 1981, through August 1985, appellants had complete control over partnership funds and the operation of the hotel.

A sale is a contract by which one transfers to another an interest in property for a price. Section 30-11-101, MCA. By contrast, “an option contract confers a privilege and a right to elect to buy, but it does not impose any obligation to buy.” Pollard v. City of Bozeman (1987), 228 Mont. 176, 180, 741 P.2d 776, 778. We are not persuaded by appellant’s argument that the option agreement should be read in isolation and interpreted as an option conferring a privilege but imposing no obligation. A sales contract may be a single document or “[sjeveral contracts relating to the same matters, between the same parties, and made as part of substantially one transaction....” Section 28-3-203, MCA. The September 16,1981, agreements were related to the same matters, were between the same parties, and were part of the same transaction. Reading the five agreements as an integrated document, it is clear that respondents transferred to appellants their interests in property for a price.

Performance of the transfer was subject to conditions precedent. “A condition precedent is one which is to be performed before some right dependent thereon accrues or some act dependent thereon is performed.” Section 28-1-403, MCA. Before appellants’ right to the partnership shares of respondents accrued, appellants were required to pay respondents $100,000 on September 16,1981, and $1,400,000 by December 31, 1985. Northwest Motor Inns was required to pay respondents each $7875 per month until December 31,1985.

The court’s finding that the five September 16, 1981, agreements constituted an integrated sales agreement subject to conditions precedent is supported by substantial evidence.

We hold that the District Court did not err when it concluded that the September 16, 1981, option agreement between the parties was a sales contract rather than an option contract.

ISSUE 2

Did the District Court err when it concluded that capital contributions were not required from respondents?

On June 10,1985, appellants requested additional capital contributions of $230,375 from respondents. The District Court concluded that in view of its finding that a sale took place in September 1981, appellants were not entitled to require capital contributions from respondents.

Appellants argue that the. District Court’s finding that a sale, rather an option agreement, was executed on September 16, 1981, lead to the illogical conclusion that respondents were not required to make capital contributions. Appellants argue further that because the September 16,1981, agreements do not constitute a sale, the 1976 management and partnership agreements of Northwest Motor Tnns requiring general partners to provide capital contributions to prevent insolvency were still in effect.

We disagree. In our discussion of Issue 1, we pointed out that the five September 16,1981, agreements constituted an integrated sales agreement rather than an option to purchase. Consequently, the 1976 management and partnership agreements no longer applied to the reconstituted partnership. In addition, the reallocation agreement provided that appellants would bear the losses and receive the income previously attributable to respondents with the exception of any depreciation or interest credits. As a result, the losses that threatened the solvency of the Northwest Motors Inns were the responsibility of appellants, as were any capital contributions needed to prevent insolvency.

We hold that the District Court did not err when it concluded that capital contributions were not required from respondents.

ISSUE 3

Did the District Court err when it concluded that respondents were entitled to recover damages under their counterclaim?

Pursuant to the reallocation agreement, respondents agreed to transfer their shares of income from the partnership to appellants. Appellants agreed to bear any losses attributable to respondents. In consideration, appellants agreed to pay through Northwest Motor Inns, $7875 per month to each respondent until December 31, 1985. Appellants began to default on their payments to respondents in the late fall of 1984. The reallocation agreement provided that in the case of an uncured default, it would be automatically terminated and the parties would return to their original partnership positions.

On August 2, 1985, respondents resumed control of the partnership and the day-to-day operations of the hotel. As of that date, the District Court found that the partnership showed losses totalling $666,678, minus credits due appellants in the amount of $56,245, for a net loss to the partnership of $610,432. Upon resuming control of the partnership and the day-to-day operations of the hotel, respondents guaranteed a $500,000 line of credit, of which the partnership borrowed approximately $250,000. The District Court found that respondents paid all past due accounts totalling $628,547. The District Court held that appellants were responsible to pay each respondent $203,477, one-third of the net losses suffered by the partnership between September 16,1981, and August 2,1985.

The court’s findings are supported by substantial evidence provided by certified public accountant, Jack Stevens, who determined the partnership’s losses by listing invoices unpaid by appellants between September 16,1981, and August 2,1985, and the subsequent payment of those invoices by respondents, less credits due appellants.

The measure of damages for a breach of contract is the amount which will compensate the aggrieved party for all detriment proximately caused by the breach. Section 27-1-311, MCA. In all cases, damages must be reasonable. Section, 27-1-302, MCA. The record shows that the District Court’s award of damages was reasonable and compensated respondents for damages caused by appellants’ breach of the agreement reallocating income and losses.

We hold that the District Court did not err when it concluded that respondents were entitled to recover damages under their counterclaim.

ISSUE 4

Did the District Court err when it awarded attorney fees and costs to respondents?

Awarding attorney fees is largely within the discretion of the district court and will not be disturbed absent a clear abuse of discretion. In re Marriage of Wackler (1993), 258 Mont 12, 17, 850 P.2d 963, 967; Smith v. Johnson (1990), 245 Mont. 137, 145, 798 P.2d 106, 111; Talmage v. Gruss (1983), 202 Mont. 410, 413, 658 P.2d 419, 421.

The reallocation agreement contains a default provision which provides that any default under the reallocation agreement is a default of the option agreement. The option agreement provides that “[i]f either party shall breach this option agreement, the defaulting party shall pay a reasonable attorney’s fee and costs to the prevailing party for the enforcement of this option agreement, whether or nor legal process is instituted.”

As previously mentioned, the District Court found that the five agreements constituted an integrated sales agreement subject to conditions precedent. As a result, we conclude that it is appropriate to apply the attorney fee provision contained in the option agreement to the default under the integrated sales agreement. Notice was given to appellants under that default provision, and appellants failed to remedy the default. As a result, we affirm the District Court’s conclusion that respondents were entitled to attorney fees. A review of the record shows that the District Court acted within its discretion in fixing respondents’ attorney fees at $102,522.50. The District Court carefully reviewed the billing records of respondents’ attorneys, and concluded that $102,522.50 properly compensated respondents for the expense of litigating the claims brought by appellants.

The District Court awarded respondents $3686.90 in costs for depositions taken in connection with this action brought by appellants. As the prevailing party, respondents are entitled to recover the cost of depositions used at trial. Section 25-10-201, MCA; Cash v. Otis Elevator Co. (1984), 210 Mont. 319, 333, 684 P.2d 1041, 1048.

We hold that the District Court did not err when it awarded attorney fees and costs to respondents.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON and WEBER concur.


author: CHIEF JUSTICE TURNAGE

text:
    IN RE THE MARRIAGE OF LONA “DIANNE” CHEW, Petitioner and Appellant, and RAYMOND CHEW, Respondent and Respondent.
    No. 94-119.
    Submitted on Briefs December 8, 1994.
    Decided January 18, 1995.
    52 St.Rep. 13.
    269 Mont. 331.
    888 P.2d 428.

      For Appellant: S, Charles Sprinkle, Douglas & Sprinkle, P.C., Libby.
    For Respondent: Stephen H. Dalby, Sverdrup & Barnes, Libby.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The parties’ marriage was dissolved by the District Court for the Nineteenth Judicial District, Lincoln Comity, Montana. Lona “Dianne” Chew appeals and Raymond Chew cross-appeals. We vacate in part, but otherwise affirm the judgment of the District Court.

The issues are:

1. Did the District Court’s method of dividing the marital estate constitute an abuse of discretion?

2. Do the restrictions imposed against Dianne with respect to maintenance constitute an abuse of discretion?

3. Is the award of maintenance to Dianne an abuse of discretion?

Lona “Dianne” Chew (Dianne) and Raymond Chew (Ray) were married for approximately twenty-five years. Their children are now adults. Ray and Dianne agreed to a disposition of their personal property. However, they disagreed on the disposition of their real property and on whether Dianne is entitled to maintenance.

At the time of trial, Ray received $824 per month in Social Security benefits, $466.76 per month in disability benefits, and $890.55 per month from the sale of property in California. He has been unable to work since 1980 as a result of an injury and will not be employable in the foreseeable future. Dianne was seasonally employed as a fire prevention aide for the Montana Department of State Lands. At the time of trial, she had undergone a double mastectomy and was preparing for related cosmetic surgery.

The District Court declared that properly owned by the parties in Utica, Montana, and in California was not part of the marital estate. The Utica property is a partial interest in a ranch which Dianne inherited. The court declared it to be her sole property. The California property is a home deeded to Ray by his mother, who moved in with Ray and Dianne when she was no longer able to take care of herself. The home has been sold under a contract, with a balloon payment due in August 1996. The court declared it to be Ray’s sole property.

The court awarded Ray possession of the family home in Libby, Montana. It ordered him to pay Dianne one-half of the sale price of the family home less certain deductions; however, it did not require Ray to do this until he receives the balloon payment on the California property in 1995 or 1996. The court also ordered Ray to pay Dianne one-half of his $466.76 monthly pension benefit for life. It ordered him to pay Dianne $850 per month in maintenance for four years “unless she dies, remarries or cohabits with another (for the greater portion of any six month period), in which case Ray’s duty to pay maintenance shall cease.” Additionally, the court ordered Ray to pursue a claim for workers’ compensation and awarded Dianne one-half of the value thereof.

Issue 1

Did the District Court’s method of dividing the marital estate constitute an abuse of discretion?

In apportioning a marital estate, a district court must finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both.

Section 40-4-202(1), MCA. This Court reviews findings of fact which divide marital property under a clearly erroneous standard. In re Marriage of Barker (1994), 264 Mont. 110, 113, 870 P.2d 86, 88.

Dianne states she does not dispute the amount of the court’s division of property, but she challenges the delay in payment for her interest in the family home. She also objects that her interest in the home is unsecured and is contingent upon the balloon payment on the California property.

At the time of trial, the family home had not been appraised, but the parties agreed that each was entitled to half of its value and that Ray wanted to buy out Dianne’s interest. The court determined that the home should be appraised and that the appraised value would be the sale price as between the parties. It ordered Ray to pay Dianne one half of the net equity, after first deducting the cost of the appraisal and the security interest against the home. Payment for Dianne’s equity, together with interest at the rate of 5 percent per annum, is to be made when Ray “receives the balloon payment on the California property (in 1995 or 1996).”

As Dianne admits, her stake in the family home is not entirely unsecured — she has the court’s order of dissolution. Further, the court specified that Ray will pay Dianne for her share of the value of the family home “in 1995 or 1996,” and awarded her interest from the date she was required to move out of the home until she is paid for her interest in it.

Faced with the absence of an appraised value of the family home at the time of trial, the parties’ agreement that each was entitled to half its value, and Ray’s desire to buy out Dianne’s interest in the home despite his disability and limited income, we conclude the court arrived at an equitable result. We hold that the District Court did not abuse its discretion in its division of the marital estate by failing to require Ray to pay Dianne immediately for her interest in the family home.

Issue 2

Do the restrictions imposed against Dianne with respect to maintenance constitute an abuse of discretion?

Ray concedes this issue. In In re Marriage of Bross (1993), 256 Mont. 174, 180, 845 P.2d 728, 731-32, we stated that “[a]bsent a showing of changed circumstances which would justify a modification of maintenance, maintenance will not automatically terminate when a recipient spouse cohabits with another individual.” We therefore vacate the provision of the District Court’s order which provides that the maintenance obligation shall cease if Dianne “cohabits with another (for the greater portion of any six month period).”

Issue 3

Is the award of maintenance to Dianne an abuse of discretion?

Under § 40-4-203, MCA, maintenance may be awarded only if the court finds that the spouse seeking maintenance (1) lacks sufficient property to provide for her reasonable needs, and (2) is unable to support herself through appropriate employment or is the custodian of a child whose needs make it appropriate that the spouse not be required to seek employment outside the home. On cross-appeal, Ray argues that the District Court did not make the prerequisite findings to award maintenance.

When it is obvious from the findings and conclusions that the court considered the character of a spouse’s property before granting a maintenance award, specific findings regarding the nature of the property are not required. In re Marriage of Cole (1988), 234 Mont. 352, 356, 763 P.2d 39, 42. Dianne’s income-producing property appears to consist of her one-half interest in Ray’s monthly disability benefit, or $233.38 per month. The itemized list of personal property which the District Court awarded to Dianne was not substantial and was not of a nature to provide support. There was no evidence that Dianne’s interest in the ranch in Utica, Montana, was income-producing. And, as discussed above, the court delayed distributing to Dianne the cash representing her interest in the family home.

The court found that Dianne’s income for the previous twelve months was $2,980.20, which was lower than in previous years because she lost time from work due to her double mastectomy. The court found that, based upon Dianne’s average earnings for 1991 and 1992, her income is approximately $346 per month. By any reasonable standard, that is not enough to provide for her needs, which will include housing and health insurance. Given Dianne’s recent surgeries, her age, and her work experience, it is clear without additional findings that it may take some time for her to obtain more lucrative employment.

The court included in its findings, conclusions, and judgment a short memorandum stating:

The Court is not unmindful of the efforts put forth by Dianne and the inconvenience occasioned to her by virtue of the presence of [Ray’s mother], and this is reflected in the determination of maintenance.

While this memorandum does not address the factors which determine whether an award of maintenance is appropriate, we conclude that it is not a basis for reversal. We conclude that the findings discussed above address Dianne’s lack of sufficient income-producing property to provide for her reasonable needs and her present inability to support herself through appropriate employment.

With the exception of the provision vacated under Issue 2, we affirm the decision of the District Court.

JUSTICES HUNT, TRIEWEILER, NELSON and WEBER concur.