text:
    WAYNE EASLEY, Plaintiff and Appellant, v. BURLINGTON NORTHERN RAILROAD, J.P. Smith, Individually, John Cattle, Individually, and Does I Through XX.
    No. 88-255.
    Submitted on Briefs Sept. 1, 1988.
    Decided Oct. 13, 1988.
    762 P.2d 870.
    Jerry R. Bechhold, Bozeman, for plaintiff and appellant.
    Moulton, Bellingham, Law Firm, K. Kent Koolen, Billings, for respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Wayne Easley and his attorney Jerry R. Bechhold appeal a decision of the Eighteenth Judicial District, Gallatin County, granting Burlington Northern Railroad’s motion to dismiss pursuant to Rule 12(b)(6), M.R.Civ.P., and imposing Rule 11, M.R.Civ.P. sanctions in the amount of $1,500.

Respondent raises the question of whether or not the appellant properly and timely preserved all issues for appeal. Having examined the record and the law on the issue, we find the appeal is untimely and we are without jurisdiction to hear it.

On October 5, 1983, Wayne Easley, an employee of Burlington Northern Railroad (BN) was injured when struck by a piece of metal from a spike mall. As a result of his injury Mr. Easley retained counsel to negotiate a settlement with BN to compensate him for his injuries. After approximately two and one-half years, negotiations culminated in a settlement payment to Mr. Easley of $55,000 in exchange for a release of all claims arising from the accident and his resignation from employment with BN. This settlement agreement was signed on May 5, 1986. The release specifically states:

“[I] release and forever discharge Burlington Northern Railroad Company, and all other parties whomsoever, from all claims and liabilities of every kind or nature, INCLUDING CLAIMS FOR INJURIES, IF ANY, WHICH ARE UNKNOWN TO ME AT THE PRESENT TIME, arising out of an accident on or about October 5, 1983, at or near Blossburg, Montana . . .”

Shortly thereafter on July 15, 1986, appellant was injured in a motorcycle accident. As a result of x-rays taken at that time, appellant purportedly learned he had a crushed vertebrae and degenerative changes in a vertebral disc. At some point between the accident and September 30, 1986, appellant contacted attorney Bechhold. On October 2, 1986, attorney Bechhold filed a four count complaint in the District Court naming BN and three of its employees as defendants. The complaint alleged two counts of negligence against BN arising from the October 5, 1983 accident, one count of bad faith for BN’s negotiation of the settlement agreement, and one count of “Negligence and Wanton and Reckless Disregard for Plaintiffs Wellbeing” against employee John O’Dell for failing to “care for Plaintiffs injuries quickly.” The complaint also sought punitive damages in the sum of $1,000,000 against BN and $1,000,000 against O’Dell.

Respondent BN moved for dismissal of the complaint for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6), M.R.Civ.P. The respondent’s brief opposing attorney Bechhold’s motion to withdraw requested the court to impose Rule 11, M.R.Civ.P. sanctions. The motion to dismiss was heard in open court on January 29, 1987 and the court issued its order granting the motion to dismiss on March 16, 1987.

The court found the complaint sought relief for the injury sustained on October 5, 1983 and that all claims arising from the accident were covered by the release executed May 5, 1986. The court found no grounds in the complaint for setting aside the release and that if the release were set aside, the “plaintiffs claims would lie only under the Federal Employers’ Liability Act (FELA) . . .” Under FELA the “plaintiff would have no claim against the individual employees [named as defendants], would not have a claim of punitive damages against the railroad, and would not have a claim based on any covenant of good faith and fair dealing.”

The court then imposed $1,500 in Rule 11 sanctions for failure to properly research the matter or file the complaint under FELA. Further, the court found the appellant failed to explain why the release executed five months before the filing of the action was not binding on the parties.

Appellant then filed a motion for reconsideration of defendant’s motion for sanctions. The motion was briefed by the parties and heard in open court on April 2, 1987. The court allowed appellant’s counsel ten days to file a final brief. The court stated it would then reconsider its ruling on the motion to dismiss and sanctions. On January 26, 1988, the court issued its order denying reconsideration of defendant’s motion for sanctions.

A motion for reconsideration, while not specifically referred to in Rule 59(g), M.R.Civ.P., has been equated to a motion to alter or amend a judgment. Pursuant to this rule a party shall serve notice of a Rule 59(g) motion not later than ten days after service of the notice of the entry of the judgment. Appellant complied with this portion of the statute. The statute goes on to provide, however, that should the court fail to rule on the motion within the 45-day period (as delineated in Rule 59(d)) the motion shall be deemed denied. Rule 59(d) provides the 45-day period begins to run from the time the motion is filed. Rule 5(a)(4), M.R.App.P., further provides that the time for filing appeals in civil cases, where a Rule 59(g) motion to alter or amend the judgment is filed, shall run for all parties from the entry of the order granting or denying the motion, or if applicable, from the time such motion is deemed denied at the expiration of the 45-day period established in Rule 59(d). This Court found in Mortensen Construction Co. v. Burlington Northern, Inc., (Mont. 1985), [218 Mont. 415,] 708 P.2d 1006, 1007, 42 St.Rep. 1699, 1700, that the time limit contained in Rule 59(d) invokes a mandatory time limit.

As Rule 59(g) clearly states that Rule 59(d) applies, we find the 45-day period commenced running on March 24, 1987, when appellant filed his motion for reconsideration of defendant’s motion for sanctions. The 45-day period expired on May 8, 1987, and appellant had 30 days from that date in which to file his notice of appeal. Appellant filed his notice of appeal, however, on February 17, 1988. We therefore dismiss the appeal as untimely pursuant to Rule 59(g), M.R.Civ.P.

This Court also notes that when an attorney files a complaint without researching the facts or the law, as was apparent in this case, District Courts have the authority to impose Rule 11, M.R.Civ.P., sanctions.

Appeal dismissed.

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


source: Caselaw Access Project

author: MR. JUSTICE HARRISON

license: Public Domain

text:
    In re the MARRIAGE OF BEVERLY C. ROLFE, Respondent and Petitioner, v. OLIVER W. ROLFE, Appellant and Respondent.
    No. 88-223.
    Submitted on Briefs Sept. 1, 1988.
    Decided Oct. 14, 1988.
    766 P.2d 223.

      Fred Thomson, Missoula, for appellant and respondent.
    Rebecca Summerville, Datsopoulos, MacDonald & Lind, Missoula, for respondent and petitioner.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Fourth Judicial District Court, Missoula County, Montana. Appellant Oliver Rolfe appeals the District Court’s denial of an award of child support from the respondent and its valuation of his retirement benefits. We affirm on both issues.

This case is presented to us after remand with instructions on the property distribution. See, Rolfe v. Rolfe (Mont. 1985), [216 Mont. 39,] 699 P.2d 79, 42 St.Rep. 623. While our remand instructions focused on a number of inequities in the property division, the present appeal concerns only the proper valuation of Oliver Rolfe’s retirement benefits. A brief set of facts will he discussed in this opinion.

Beverly Rolfe (hereinafter wife) and Oliver Rolfe (hereinafter husband) were married in 1968 and divorced in 1983. They have two sons, Jonathan and Alexander. Sole custody of the children was awarded to husband, with supervised visitation for wife. The husband has a Ph.D. in Romance Linguistics and is a tenured professor at the University of Montana. Husband has been employed with the Montana University System since 1971, and in conjunction with his employment, contributes to the Montana Teachers’ Retirement System. Husband, at the time of the dissolution, had an average yearly salary of $28,484.

Wife was a homemaker throughout the marriage. She has a B.A. in Education and taught for several years prior to the marriage. On remand, the District Court found that although wife could acquire the necessary quarter credits to gain a teaching certificate, the surplus of elementary school teachers in Missoula and keen competition for available jobs made such employment problematic. In wife’s current job as a medical transcriptionist she earns approximately $11,000 annually. The maximum wage available in the field is approximately $15,288 annually. In addition, wife would like to gain employment in the legal secretarial field. Because of the limited teaching positions in Missoula, the greater opportunities in the legal secretarial and medical transcriptionist fields and insignificant wage differences, the District Court found wife’s plan for training and employment reasonable.

On remand, the District Court heard substantial evidence from experts regarding the proper valuation of the retirement benefits, as per our instructions. From this evidence, the lower court made extensive findings, concluding the retirement benefits should be divided according to a formula, as they are received.

The husband raises two issues on appeal. First, husband attacks the pension valuation, asserting the trial court impermissibly included non-marital assets in the valuation. Second, husband argues the lower court erred in refusing to award child support to be paid by wife.

Issue No. 1: Pension Valuation

The husband’s first issue focuses on the proper valuation for retirement benefits. It is well established in this state that retirement benefits are a part of the marital estate. Karr v. Karr (Mont. 1981), [_Mont._,] 628 P.2d 267, 38 St.Rep. 506. The question is what value to assign to the pension for proper division of the marital asset. While we attempted to give instructions in our previous decision, we recognize such assets contain numerous contingencies, thereby avoiding categorical formulas.

To begin our decision, an in depth review of the specific retirement plan is in order. The Montana Teachers’ Retirement System (hereinafter MTRS) plan provides for both employee and employer contributions, 7.044% and 7.428% respectively, based upon the rate of salary earned each month. The plan benefits become a vested right after five years of full-time service in Montana for which contributions have been made. Benefits are computed according to a formula:

Annual _ Creditable Service Benefit 60 Average Final Compensation

The annual retirement benefit is paid in twelve equal monthly installments. The average final compensation value is the highest average of earned compensation during three consecutive years of full-time service.

Once an employee ceases teaching in Montana, he may apply for benefits. Benefits are payable in full after 25 years of service, regardless of age. However, an employee with less than 25 years of service can retire as early as age 50, at a reduced benefit. The normal retirement age is 60. The reduction is .5% for each of the first 60 months the retirement date precedes age 60 or 25 years of service, and .3% for each additional month. At trial, experts testified Dr. Rolfe’s benefits would be reduced 37.2% if he were to retire at age 50. In addition, the MTRS plan does not provide for lump sum distribution of benefits prior to age 50. An employee may, however, obtain a refund of employee contributions upon withdrawal from the plan.

Generally, the proper test for determining the value of a pension is the present value. In re Marriage of Bowman (Mont. 1987), [226 Mont. 99,] 734 P.2d 197, 203, 44 St.Rep. 488, 494. Given the various contingencies, however, present value may not be adequate to value the asset. For instance, our earlier decision instructed the District Court to not only consider the amount of husband’s contributions, but also to consider nonvested pension benefits in the form of employer’s future contributions. Rolfe, 699 P.2d at 83. These nonvested amounts are analogous to deferred compensation which the husband earned during the marriage. In re Marriage of Pryor (Mont. 1986), [224 Mont. 488,] 731 P.2d 895, 898, 43 St.Rep. 2358, 2361. The employer’s future contributions, like husband’s contributions, are a factor of monthly salary, an amount which could not accurately be determined. In addition, the plan’s reduced benefit formulation varies significantly with the individual. Numerous other contingencies associated with retirement benefits, including early retirement or disability, are equally elusive of accurate calculation.

Rather than attempt to project each individual contingency, the District Court developed a formula to divide the pension benefits:

Years of Service During Marriage Years of Total Service Monthly Benefit (after taxes)

The division of retirement benefits upon receipt is commonly known as the “time rule” and was mentioned in our earlier decision via citation to In re Marriage of Brown (Cal. 1976), 544 P.2d 561. See, Rolfe, 699 P.2d at 83. Under this method, the marital interest is represented by a fraction, the numerator of which is the length of the employee’s service during the marriage, and the denominator is the employee’s total length of service. This fraction is then applied to each benefit payment, lump or periodic, to determine the portion earned during the marriage. Although the extent of the marital interest is determined as of the date of the dissolution, the benefit factors to be applied to the pension credits earned during the marriage are those in effect at retirement. Thus, the non-employee spouse is entitled to increases or accruals on her interest because of the delay in receiving those payments. McNamara, Dividing Pension Benefits Upon Divorce, ALI-ABA Course Materials Journal, No. 2, 33, 42 (1983).

Husband argues this formula impermissibly includes non-marital property in the form of future employee contributions, and does not finally apportion the marital estate. Husband would urge this Court to value the pension as of the date of dissolution, yet suspend payment until he retires. This position is flawed in three respects. First, the monthly pension benefit is not determined by the amount of contributions, but instead by the highest average salary earned over three consecutive years. Therefore, the only amounts which could arguably be called post-marital property are possible salary increases received prior to retirement. As the husband’s expert testified at trial, Dr. Rolfe historically received a 3% increase each year. The trial court expressly excluded any amounts unique to husband, such as merit pay raises. Second, each party is well aware of their respective percentage of pension benefits: the fraction represents the marital interest. Third, to value payments now, without also demanding an immediate cash payment to wife, would result in an unfair windfall to husband. Wife could easily earn over 3% were she able to invest the money immediately. Certainly husband recognizes the inequity in a delay without corresponding interest.

Husband also claims the order effectively binds him to continued employment with the University, and in turn, MTRS plan. This Court fails to see the basis of husband’s argument. On the contrary, the judgment allows Dr. Rolfe continued volitional choice. As part of its detailed findings, the District Court included numerous applications intended to illustrate possible status changes, including early retirement, disability, death or retirement after age 60 (normal age). The formula adopted allows the parties to share the risks while protecting wife’s interest.

The judgment is not unusual. As cited above, the California Supreme Court recognized the difficulties associated with pension valuation, stating:

“[I]f the court concludes that because of uncertainties affecting the vesting or maturation of the pension that it should not attempt to divide the present value of pension rights, it can instead award each spouse an appropriate portion of each pension payment as it is paid. This method of dividing the . . . interest in the pension renders it unnecessary for the court to compute the present value of the pension rights, and divides equally the risk that the pension will fail to vest.”

Brown, 126 Cal.Rptr. at 639, 544 P.2d at 567. Additional guidelines as to division of the pension may be found in earlier cases, including In re Marriage of Glasser (1983), 206 Mont. 77, 85, 669 P.2d 685, 689, quoting Matter of the Marriage of Rogers and Rogers (Or. 1980), 609 P.2d 877, 882-883, stating that:

“(1) The distribution should generally be based on contributions made during marriage. (2) The courts should continue to strive to disentangle the parties as much as possible by determining, where equitable, a sum certain to be paid rather than a percentage based upon expected future contingencies. (3) In determining whether a lump sum award is appropriate, courts should consider the burden it would place on the paying spouse in view of required child support, spousal support, and other property distribution. (4) Where courts determine that the parties will share in the benefits on a proportional basis, the parties should also share the risks of future contingencies, e.g., death of the employe[e] spouse or delayed retirement of the employe [e] spouse, and payment should be to the receiving spouse as the employe[e] spouse receives the retirement pay. (5) Courts should consider, where appropriate, an award of a portion of retirement benefits where other property awarded is not adequate to make an equitable distribution.”

The findings illustrate the District Court’s complete understanding of the situation. The distribution is beneficial to both parties, providing for wife’s security in later years without a reduction in needed current income, and suspending a burdensome cash payment. While husband may argue such continued jurisdiction is inappropriate, we point to the much more onerous task of maintenance supervision, a burden continually accepted by the district courts. Brown, 599 P.2d at 568. More to the point, there appears to be no alternative to eífect a division of the MTRS benefits, given the mechanics of the plan, nature of the property and desires of the parties. The lower court may, therefore, retain jurisdiction to supervise the implementation of the order when the employee retires. See, Johnson v. Johnson (1981), 131 Ariz. 38, 638 P.2d 705; Shill v. Shill (1979), 100 Idaho 433, 599 P.2d 1004.

The District Court is granted substantial discretion to devise a method to accomplish an equitable distribution. In re Marriage of Johnsrud (1977), 175 Mont. 117, 122, 572 P.2d 902, 905. In this case, the District Court saw numerous problems and developed a reasonable alternative supported by very detailed findings. We see no abuse of discretion.

Issue No. 2: Child Support

Husband also challenges the District Court’s denial of child support, arguing the lower court failed to consider the statutory criteria. Husband also points to our Uniform Child Support Guidelines (Mont. 1987), [227 Mont. 1,] 44 St.Rep. 828, claiming only a parent mentally or physically incapacitated will be excused from paying child support. Not only do the adopted guidelines make no such conclusion, but expressly state the guidelines are not binding on judges to prevent appeals based on a claimed failure to observe the recommendations. Their major purpose is to produce a uniform and equitable approach to the statutory standard.

Section 40-4-204(1), MCA, states the factors the District Court must consider in an award of child support, including:

“(a) [T]he financial resources of the child;
“(b) the financial resources of the custodial parent;
“(c) the standard of living the child would have enjoyed had the marriage not been dissolved;
“(d) the physical and emotional condition of the child and his educational needs;
“(e) the financial resources and needs of the noncustodial parent

However, if the court does not order a parent to pay child support, it must state the reasons for doing so. Section 40-4-204(2), MCA. From the District Court’s numerous findings, we list a few to illustrate the thorough consideration given to the statutory factors:

“58. Bev’s monthly expenses exceed her monthly income by $200 per month.
“59. Wil is a tenured professor currently under a ten-month contract at the University of Montana and earned a gross annual salary of $28,484 at the time of the dissolution.
“60. Wil is not under contract for the two summer months and he could seek employment during that time.
“64. Wil’s yearly income is over two times Bev’s yearly income.
“65. Considering the . . . increase in Wil’s expenses attributable to the children and his substantially larger income, the needs of the children can be met without the payment of support by Bev. There will not be a reduction in the standard of living experienced by the children and Bev will be in a better position to meet her financial obligations.
“66. Bev has only minimal ability to acquire future assets.
“67. Wil does have the ability to acquire future assets because of his admitted astute business skill . . .”

In support of his argument, husband points only to the increase in expenses attributable to his custody of the children. But as the statute makes clear, expense is not determinative. Considering each parties’ financial positions, current and future, and the standard of living enjoyed by the children, the District Court found an award of child support inapplicable.

The decree of the District Court clearly indicates all the statutory factors were considered. Child support awards will not be disturbed on appeal unless there has been a clear abuse of discretion resulting in substantial injustice. In re Marriage of Alt (Mont. 1985), [218 Mont. 327,] 708 P.2d 258, 261, 42 St.Rep. 1621, 1626. We find no abuse of discretion on this issue.

Affirmed.

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


author: MR. JUSTICE HUNT

text:
    DONALD AND LOIS STOUT, husband and wife, and Max and Marie McGrann, husband and wife, Plaintiffs and Respondents, v. THE MONTANA POWER COMPANY, a Montana corporation, Defendant and Appellant.
    No. 87-499.
    Submitted on Briefs July 21, 1988.
    Decided Oct. 17, 1988.
    762 P.2d 875.

      Patrick T. Fleming, Butte, for defendant and appellant.
    R. Keith Strong, Church, Harris, Johnson and Williams, Great Falls, John R. Christensen, Stanford, for plaintiffs and respondents.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

The Montana Power Company, defendant, appeals the jury verdict and decision of the District Court of the Tenth Judicial District, Fergus County, denying defendant’s motions for a directed verdict and for a judgment notwithstanding the jury verdict. We affirm.

Montana Power Company raises the following three issues on appeal:

1. Whether the District Court erred by denying defendant’s motion for a directed verdict after the close of plaintiffs’ cases.

2. Whether substantial evidence exists to support the jury verdict, finding defendant negligent in constructing, maintaining and inspecting the power equipment and service lines connected to Stouts’ building.

3. Whether the District Court erred by denying defendant’s motion for judgment notwithstanding the jury verdict.

Donald and Lois Stout owned a building in Coffee Creek, Montana. They leased part of the building to Max and Marie McGrann, who used a portion of the building as a residence and another portion to operate their meat cutting business. Stouts reserved a portion of the building to use as a storage facility and post office. Montana Power Company owned the power equipment and service lines that delivered electricity to Stouts’ building.

On April 2, 1985, a fire completely destroyed Stouts’ building and its contents. Stouts filed a lawsuit on June 4, 1985 in the District Court of the Tenth Judicial District, Fergus County, alleging that defendant failed to perform properly its duty of inspecting and maintaining its power equipment and service lines connected to their building in Coffee Creek and that the failure proximately caused the fire that destroyed their building, causing them financial loss. Shortly thereafter, McGranns filed a similar lawsuit in the same action. The District Court consolidated Stouts’ and McGranns’ lawsuits for trial.

The parties tried the lawsuits before a jury beginning September 28, 1987 and continuing through October 1, 1987, at which time Stouts and McGranns rested. Defendant moved for a motion for a directed verdict as to its alleged negligence. The District Court found that sufficient facts existed to permit the cases to go to the jury and denied the motion. Defendant rested without presenting any additional evidence.

The jury returned a verdict on October 1, 1987 finding defendant negligent in constructing, maintaining and inspecting the power equipment and service lines connected to Stouts’ building. On October 8, 1987, defendant moved for a judgment in its favor notwithstanding the verdict. The District Court denied the motion and defendant then appealed to this Court.

The first issue presented to this Court is whether the District Court erred by denying defendant’s motion for a directed verdict after the close of plaintiffs’ cases.

The District Court, as well as this Court, must view a motion for a directed verdict in a light most favorable to the nonmoving party. Britton v. Farmers Insurance Group (Mont. 1986), [221 Mont. 67,] 721 P.2d 303, 317, 43 St.Rep. 641, 656; Jacques v. Montana Nat’l Guard (1982), 199 Mont. 493, 504, 649 P.2d 1319, 1325; Weber v. Blue Cross of Montana (1982), 196 Mont. 454, 462, 643 P.2d 198, 202. The motion is properly granted only if no evidence exists that would warrant submission to the jury. A directed verdict is not proper, therefore, when the inferences and conclusions drawn from the evidence presented could differ among reasonable people. Britton, 721 P.2d at 317, 43 St.Rep. at 656; Jacques, 199 Mont. at 504-05, 649 P.2d at 1325; Weber, 196 Mont. at 462-63, 643 P.2d at 202. The District Court found that sufficient evidence existed that was within the province of the jury. We agree.

At the trial level, the primary issue presented was whether defendant was negligent in maintaining and inspecting the power equipment and service lines connected to Stouts’ building. In denying the motion for a directed verdict, the District Court relied on Professor Bernstein’s expert opinion as to the cause of the fire; Marie Mc-Grann’s testimony that on the day of the fire she saw a loose wire; and photographs of other service lines in the Coffee Creek area that are maintained by defendant. As the District Court properly noted, a jury was impaneled and when genuine questions of facts exist it is the jury’s function to determine the facts. In this case, the jury was the proper body to determine the weight of Professor Bernstein’s expert opinion; Marie McGrann’s testimony; and the photographs of other service lines in the Coffee Creek area that appeared poorly maintained. The inferences and conclusions drawn from this evidence could differ among reasonable people, as evident by the jury’s inferences and conclusions, which resulted in a verdict for Stouts and McGranns, versus defendant’s assertion that no evidence whatsoever exists that would establish negligence on their part.

When requested to direct a verdict, a court must exercise the “greatest self-restraint in interfering with the constitutionally mandated processes of jury decision. The message is to do so only in the clearest of cases . . . .” Jacques, 199 Mont. at 504, 649 P.2d at 1325 (quoting Karczewski v. Ford Motor Co. (N.D. Ind. 1974), 382 F.Supp. 1346, 1348, aff’d, 515 F.2d 511 (7th Cir. 1975)). After viewing the motion in a light most favorable to Stouts and McGranns, we affirm the District Court’s finding that sufficient evidence existed to deny defendant’s motion for a directed verdict after the close of plaintiffs’ cases.

The second issue raised on appeal is whether substantial evidence exists to support the jury verdict finding defendant negligent in constructing, maintaining and inspecting the power equipment and service lines connected to Stouts’ building.

When presented with this issue, the law requires this Court to review the evidence in a light most favorable to the prevailing party. Wheeler v. City of Bozeman (Mont. 1988), [232 Mont. 434,] 757 P.2d 345, 347, 45 St.Rep. 1173, 1176; Kukuchka v. Ziemet (Mont. 1985), [219 Mont. 155,] 710 P.2d 1361, 1363, 42 St.Rep. 1916, 1917; Gunnels v. Hoyt (Mont. 1981), [_Mont._,] 633 P.2d 1187, 1191, 38 St.Rep. 1492, 1495. The evidence may be inherently weak and still be considered substantial. Wheeler, 757 P.2d at 347, 45 St.Rep. at 1176; Gunnels, 633 P.2d at 1191, 38 St.Rep. at 1495.

The record shows that Max and Marie McGrann testified that just prior to the fire their lights were flickering and their radio was making static. Lois Stout also testified that the lights were flickering just before the fire started. Marlin Jegtvig, who hauls away meat byproducts from McGranns’ business once a week testified that on the day of the fire he made his routine stop at McGranns’ and witnessed arcing, a sustained luminous discharge of electricity across a gap, within the joints of the tin siding of the building. He informed Max and Marie McGrann, who both testified that they also observed the arcing. Marie McGrann then testified that she promptly called Montana Power Company so as to have the power turned off and that she had also noticed a loose swinging wire when she observed the arcing. Ron Brinkman, a member of the Coffee Creek Volunteer Fire Department, testified that he also observed a loose wire on the top roof knob, after Dick Ronish, another person at the scene of the fire, pointed it out to him.

The record also shows that Theodore Bernstein, a professor of electrical and computer engineering and who is frequently called to assess the cause of a fire, testified that after reading statements and depositions from people at the fire, studying photographs of Montana Power Company’s service lines in the Coffee Creek area shortly after the fire, photographs of the equipment that was removed from the fire, and photographs of the fire scene, that in his expert opinion the fire began when the upper roof knob pulled loose from the building and swung into the tin siding. He further testified that every time the roof knob would hit the tin siding the electricity would go from the pole to the siding via the wire and roof knob, and then to the ground. He testified that the temperature of the arcs range from two to four thousand degrees, or even higher. The fire ignited, in his opinion, when the electricity would cross over flammable materials in the building, such as wooden slats or beams.

Defendant argues that Professor Bernstein’s opinion regarding the cause of the fire was wrong because his opinion was based on a roof knob coming loose, and Ronald Brinkman, a volunteer fireman at the scene of the fire, testified that he did not see any loose roof knobs. Professor Bernstein also testified, however, that a roof knob from Stouts’ building had signs of arcing, which would only occur if the knob had swung loose and hit the tin siding. When conflicting evidence exist, the credibility and weight given to the conflicting evidence is within the jury’s province. Wheeler, 757 P.2d at 347, 45 St.Rep. at 1176; Mountain West Farm Bureau Mutual Insurance Co. v. Girton (Mont. 1985), [215 Mont. 408,] 697 P.2d 1362, 1363, 42 St.Rep. 500, 501. This Court will not reweigh conflicting evidence on appeal. We therefore hold that substantial evidence existed to support the jury verdict.

The last issue raised on appeal is whether the District Court erred by denying defendant’s motion for judgment notwithstanding the jury verdict.

This motion, like a motion for a directed verdict, is properly granted only when no evidence exists to support a jury verdict. Wil kerson v. School Dist. No. 15, Glacier Cty. (Mont. 1985), [216 Mont. 203,] 700 P.2d 617, 622, 42 St.Rep. 745, 750-51. Gunlock v. Western Equipment Co. (Mont. 1985), [219 Mont. 112,] 710 P.2d 714, 716, 42 St.Rep. 1882, 1884-85. In light of our previous discussion, we hold that the District Court properly denied defendant’s motion for a judgment notwithstanding the verdict.

Affirmed.

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


author: MR. CHIEF JUSTICE TURNAGE MR. JUSTICE SHEEHY,

text:
    CYRUS ORVILLE WATSON, Claimant and Appellant, v. KIRK SEEKINS, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 88-98.
    Submitted on Briefs Aug. 4, 1988.
    Decided Oct. 17, 1988.
    763 P.2d 328.

      Robert W. Gabriel, Great Falls, for claimant and appellant.
    Mike McCarter, Hughes, Kellner, Sullivan & Alke, Helena, for defendant and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Claimant appeals an order of the Workers’ Compensation Court offsetting his state workers’ compensation disability pay by 50 percent of his entire weekly federal disability pay. The issues on appeal are (1) whether the lower court erred in determining that the workers’ compensation offset statute, Section 39-71-702(2), MCA (1981), was clear and unambiguous on its face; (2) whether the lower court erred in denying Watson attorney fees and costs; (3) whether Watson is entitled to have the statutory penalty of 20 percent assessed against defendant State Fund for unreasonable delay or failure to pay a claim; and (4) whether Watson can argue on appeal that the lower court’s construction of the offset statute is unconstitutional when he did not advance that argument at the trial level. We affirm.

On August 31, 1979, appellant, age fifty-six, suffered an industrial accident while working for defendant Seekins which rendered him totally permanently disabled. He then began receiving state disability benefits from the Workers’ Compensation State Fund. He was receiving $198.00 per week from the State Fund in 1985. On January 30, 1985, appellant Watson turned sixty-two years old and shortly thereafter applied for early retirement benefits from the Social Security Administration. These monthly benefits, payable at $261.00 per month were lower than full retirement benefits available from Social Security had he chosen to postpone retirement until age sixty-five.

After receiving early retirement benefits for about six months, Watson changed his mind and applied for disability benefits instead. The disability pay was a larger monthly amount but was also subject to the state setoff statute, Section 39-71-702(2), MCA (1981). Watson’s election of disability pay was accepted by the Social Security Administration, and he began receiving $372.00 per month, an increase of $111.00 per month over the early retirement pay. He also received a lump sum payment of back benefits for disability dating back to the date when he actually turned sixty-two. This back payment effectively made his election to take disability retroactive and eliminated his election to retire early.

In a letter dated August 4, 1986, the Workers’ Compensation Division notified Watson that it would be applying the setoff allowed by statute to his weekly disability benefits received from the state government. The setoff (50 percent of his weekly federal benefits) would be deducted from his weekly state disability benefits in order to eliminate the duplication of disability pay. The Division also claimed an overpayment in the amount of $3,461.62, which it wished to recover from Watson.

The result was that Watson suffered a reduction of $42.81 per week from his state disability pay and actually received less monthly money overall due to the setoff than he would have had he stuck with his original election of early retirement.

The Division’s computations were as follows:

Step 1
monthly $372.00 federal disability which resolves itself to weekly $ 85.62 federal disability
Step 2
weekly $ 85.62 federal disability reduced by 50% = $ 42.81 setoff rate
Step 3
weekly $198.00 state workers’ compensation — $42.81 setoff weekly $155.19 workers’ compensation

Watson challenged those computations. He argued that the entire amount of $372.00 disability pay should not be subject to setoff. Rather, he argued, only the $111.00 difference between retirement pay and disability pay should be subject to setoff. Watson argued that he was entitled to retirement pay of $261.00 in his own right which was not subject to setoff and, therefore, only the increased amount of $111.00 could be used in the setoff computations. Under Watson’s theory, he would suffer a weekly reduction in state money of only $12.78.

Defendant State Fund argued that the election was a choice entitling Watson to one benefit or the other, but not both. If Watson chose to take disability pay, that pay (the entire amount) was subject to the state statute allowing setoff. State Fund found the statute in question to be plain and unambiguous, stating that where disability pay is given by the federal government it is subject to setoff by the state government.

The Workers’ Compensation Court adopted the findings of fact and conclusions of law as determined by the Hearing Examiner and entered its judgment and order on December 21, 1987. The court determined the statute to be clear and unambiguous on its face, affecting the entire amount of federal benefits. Its order provided that the defendant was entitled to an offset in the amount of $42.81 per week based on the entire weekly disability benefits paid to Watson under the Social Security Act. It further found that such an offset would continue for as long as Watson received federal disability pay and that he was neither entitled to the requested attorney fees and costs, nor a 20 percent penalty against the Division for unreasonable refusal or delay in payment. Watson’s January 7, 1988, motion for a new trial was denied, and this appeal followed.

Watson’s primary issue on appeal is that of statutory construction and legislative intent. Appellant argues that the court misinterpreted the statute; that the statute is ambiguous in that it is susceptible of two interpretations; that where a genuine doubt exists, the ambiguity should be resolved in favor of the injured claimant; and finally that accepting the court’s interpretation of the statute would be an unconstitutional violation of the Supremacy Clause, in that it would nullify the effect of the federal disability provisions of the Social Security Act for persons such as Watson.

This Court finds the statute to be clear and unambiguous, affirming the Workers’ Compensation Court judgment. Affirmation of the lower court on the merits of the first issue renders the remaining issues of the attorney fees, costs and penalty moot.

I. INTERPRETATION OF THE STATUTE

The offset statute is Section 39-71-702(2), MCA (1981). This statute was amended in 1987 and its successor is Section 39-71-702(4). However, it is the statute in effect at the time of the injury that sets the standard by which the benefits to the claimant are to be computed. Trusty v. Consolidated Freidgtwasy Mont. 1984), [210 Mont. 148,] 681 P.2d 1085, 41 St.Rep. 973. That statute reads in pertinent part as follows:

“In cases where it is determined that periodic disability benefits granted by the Social Security Act are payable because of the injury, the weekly benefits payable under this section [under the state Workers’ Compensation Act] are reduced, but not below zero, by an amount equal, as nearly as practical, to one-half the federal periodic benefits for such week, which amount is to be calculated from the date of the disability social security entitlement.”

Watson argues that the language, payable because of the injury, refers only to the increased amount of $111.00 per month, which is the difference between the early retirement amount and the disability amount. It is his statutory construction that this is the only “fair” way to read the statute and that any other interpretation is perverse. We disagree.

All statutory construction by courts is an attempt to search out the intent of the legislature. Johnson v. Marias River Electrical Cooperative, Inc. (Mont. 1984), [211 Mont. 518,] 687 P.2d 668, 41 St.Rep. 1528. This Court’s role, then is to let the legislative intent control whenever possible. Darby Spar, Ltd. v. Dept. of Revenue (Mont. 1985), [217 Mont. 376,] 705 P.2d 111, 42 St.Rep. 1262.

Watson argues his interpretation is the only fair one because it is the one construed consistently with the legislative intent. According to Watson, the legislative intent is to benefit disabled workers more than merely retired workers. Watson cites Freeman v. Harris (5th Cir. 1980), 625 F.2d 1303, and Lindquist v. Brown (8th Cir. 1987), 813 F.2d 884, as authority for construing a statute in favor of the claimant by using legislative intent. However, these cases are of little help in determining the legislative intent for the Montana statute in question.

The Freeman case is not dispositive on this issue and is only similar to the case at bar in that the Freeman court interpreted the legislative intent espoused in two federal offset statutes. In Freeman the claimant received benefits from three sources: federal Social Security, state workers’ compensation and federal Black Lung benefits. Because both the workers’ compensation and Social Security were offset against the Black Lung award, the claimant ultimately received less under the three programs than he would have under only two programs not so heavily offset.

However, the distinction here is that the federal black lung statute required the claimant to simultaneously pursue state workers’ compensation funds which triggered the double offset. The court found the congressional intent expressed in the Social Security Act was that the states would be the primary providers of disability benefits to workers and that the federal government would only assist where state programs were inadequate. The result under double offset was to discourage injured miners from seeking state workers’ compensation benefits. That result contravened the congressional intent. Additionally, the court found the corresponding legislative intent behind the Black Lung statute was to replace income for injured workers. These two legislative goals could not be met simultaneously in the Freeman case. Thus, the court resolved the tension by letting both offsets stand as authorized by statute but not so as to exceed 100 percent of the state workers’ compensation benefits payable to claimant.

These facts do not help us resolve the question of legislative intent for our statute. The required double offset in Freeman is not analogous to the elective single offset under these facts. Moreover, our statute has already considered the ultimate issue decided in Freeman, that the offset cannot be 100 percent of the benefit, or in the language of the Montana statute, “cannot reduce the benefit below zero.”

Likewise, Lindquist is not helpful in the instant case merely because the Lindquist court declared the legislative intent behind the Social Security retirement pay schedule was to encourage people to continue working and postpone retirement.

Claimant also asserts Subsequent Injuries Fund v. Industrial Accident Commission (1963), 217 Cal.App.2d 322, 31 Cal.Rep. 508, as authority for “pro rating” the federal Social Security benefits. By statute, California maintained a fund to compensate industrial injuries which were aggravations of a preexisting injury. The legislative intent was to encourage injured workers to rehabilitate and re-enter the work force. The plaintiff in that case went blind as a result of an industrial accident. It was determined that the resultant blindness was caused 68.25 percent by the preexisting injury. Thus, the Fund was allowed to reduce its payments by 68.25 percent of the Social Security benefits awarded.

However, that California case on quite different facts is not persuasive authority to pro rate Watson’s federal benefits and find that 70 percent of his pay is due to retirement and 30 percent is due to injury. We are not inclined to read that into the Montana statute on the basis of a California “pro rata” case interpreting a statute with a totally different legislative intent.

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. Offset has never applied to federal retirement pay.

Everyone is in agreement that under the Montana statute where federal disability benefits are awarded, state setoff occurs. The dispute is how much disability pay should be used to compute setoff: all of it or only part of it. The statute simply does not allow for Watson’s formula to exclude a part of the entire award. The words are not there. The role of the Court is not to insert what has been omitted by the statute. Chennault v. Sager (1980), 187 Mont. 455, 610 P.2d 173. Had the legislature intended an exemption, exclusion, or any other formula to apply to reduce the amount subject to setoff, it is reasonable to assume that it would have expressed it in the statute.

It should be noted here that Watson did not submit evidence that the legislature intended only the difference between the two amounts be considered as disability benefits. Nor did Watson show that the statute had ever been interpreted that way in the past. Absent such evidence, the Workers’ Compensation Court properly was reluctant to change the plain reading of the language in order to effect claimant’s wishes. Additionally, this Court finds no such evidence in the legislative history of the statute.

Therefore, we conclude that the language in the statute, “payable because of the injury,” is not an authorization for the exemption of a part of Watson’s federal disability from the state setoff. Thus, the statute is not susceptible of two meanings, and no ambiguity exists.

Lastly, we find that the lower court’s interpretation of the statute is not an unconstitutional violation of the Supremacy Clause.

Watson is allowed to advance that argument on appeal when he did not specifically raise it at trial because it is not meant to be an independent constitutional challenge to the statute. Rather, it is an attack on how the lower court construed the statute, which is an inherent theory to his primary argument: that the court erred in interpreting the statute. American Equitable Assurance Co. v. Newman (1957), 132 Mont. 63, 313 P.2d 1023, 1027.

However, Watson’s theory is without merit. The state statute does not prohibit Watson from electing to take federal disability pay nor does it preclude him from receiving that pay to which he is entitled under the federal act. Thus, it does not nullify the federal statute. Therefore, the Montana statute as interpreted by the lower court is constitutional.

It is, however, a likely disincentive for injured workers between ages sixty-two and sixty-five to elect to take the federal funds subject to setoff. As in Watson’s case, his choice did not benefit him in the end.

We have considered the statute in question, along with the arguments and authorities advanced by counsel. We conclude that the statute is clear and unambiguous in its plain language. Whether the plain interpretation of this statute is unfair under the particular facts of the Watson case is, regrettably, not for the judiciary.

Judgment affirmed.

MR. JUSTICES HARRISON, McDONOUGH and GULBRANDSON concur.

MR. JUSTICE SHEEHY,

specially concurring:

I concur with the result of this case, but I cannot concur in the deviation in application from the basic principles upon which the setoff is allowed under federal and state law.

The only reason that the total disability payments received by Watson under the workers’ compensation law of this state maybe offset to any extent by federal payments to him for his total disability is because of federal law. Since Watson has not attained age 65, and is entitled to workers’ compensation payments under state law, as well as disability payments under federal law, the combined benefits he receives under both sets of laws cannot exceed 80 percent of his “average current earnings” at the outset of his disability. 42 U.S.C. Section 424(a). The federal law further provides that the federal benefits under social security for disability will not be reduced if the state workers’ compensation law under which he also receives benefits provides for the reduction of the state benefits to meet the 80 percent maximum. 42 U.S.C. Section 424(a) (d).

How this system works was explained in Herzog v. Department of Labor and Industry (Wash. App. 1985), 696 P.2d 1247, where the court said:

“Some recipients of workers compensation disability payments, are also entitled to Social Security payments. When this is so, federal law prohibits the combined benefits from exceeding 80 percent of the recipient’s average current earnings at the time the disability was suffered. Combined benefits exceeding this level must be reduced. Federal law permits a state to take full advantage of this by permitting the reduction to be taken entirely from the state benefits

Montana has taken advantage of the federal provision by enacting Section 39-71-702(4), MCA, which provides for an offset of the weekly compensation benefits by an amount equal to one-half of the federal periodic benefits for such week.

If we assume that the weekly wages that Watson was receiving at the time of his injury in 1979 was $297 (his weekly workers’ compensation benefit was $198, which should be two-thirds of his wages, Section 39-71-702 (1979)), then the following computation would be correct to apply in this case:

I. Determination of the Reduction:
Total monthly workers’ compensation payments $ 848.57
Add monthly Social Security disability benefits 372.00
Total $ 1,220.57
Subtract 80% wages at time of injury (1272.85 X 80%) -1,018.28
Amount of Reduction $ 202.29
II. Application of Reduction:
Total workers’ compensation entitlement $ 848.57
Subtract reduction -202.29
Total monthly workers’ compensation payment $ 646.28
III. Payments (monthly) after Reduction:
Social Security disability payment $ 372.00
Workers’ compensation disability payment $ 646.28
Total permissible payment $ 1,018.28
IV.Translate to weekly payments:
Workers’ compensation disability payments ($646.28 X 7) = 30 $ 150.79
Social Security disability payments ($372 X 7) = 30 86.80
TOTAL Weekly Payments $ 237.59

Unfortunately, the above would yield less money to the claimant than what he is already receiving (due to the difference between annual and monthly computations), but I submit that the foregoing is a proper application of the benefits to which he entitled taking into account federal and state law.

I would affirm the judgment.

      . $372 per month X 12 = $4,464 per year
      $4,464 -5- 365 days = $12,230 per day
      $12,230 X 7 = $85.610952 per week
      Rounded up in favor of Watson — $85.62 per week


author: MR. JUSTICE McDONOUGH

text:
    VERN D. WARNER and Bernice M Warner, Plaintiffs, Counter-Defendants and Appellants, v. MICHAEL L. PETERSON, Defendant, Counter-Claimant and Respondent.
    No. 88-306.
    Submitted on Briefs Sept. 9, 1988.
    Decided Oct. 17, 1988.
    762 P.2d 872.

      Greg L. Ingraham, Ronan, for plaintiffs, counter-defendants and appellants.
    Snavely and Phillips; Robert J. Phillips, Missoula, for defendant, counter-claimant and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal from the Twentieth Judicial District, in and for the County of Sanders, arises from a dispute over a contract for the sale of property near Noxon, Montana. We affirm.

The relevant facts are as follows: Appellants Warners agreed in writing to sell the Bull River Resort to respondent Peterson on an installment basis. The agreement provided for an award of attorney fees and litigation costs to the winner of any dispute arising from the contract.

Peterson stopped making payments for the property following a dispute with Warners. Warners sued to enforce the contract’s forfeiture provision. Peterson counterclaimed for damages and in the alternative petitioned to rescind the contract alleging failure of consideration and misrepresentation on the part of Warners.

The parties tried their claims before a Sanders County jury. During trial Warners mortgaged the subject property to their attorney to secure attorney fees owed by Warners.

The jury granted rescission for Peterson. Peterson moved for attorney fees and litigation costs. The District Court granted Peterson’s motion and incorporated the award in its judgment entitling Peterson to the return of funds paid for the property. The judgment ordered payment within 30 days. The judgment also provided for satisfaction by foreclosure of the contract property in the event Warners failed to pay within 30 days.

Warners failed to pay the judgment. Except for the contract property, Warners have no means to satisfy the judgment. The sale of the property may or may not provide sufficient funds to cover both parties’ attorney fees.

Peterson filed a motion to determine priorities. Pursuant to the motion, the District Court held that Peterson’s award of attorney fees and costs was part of a purchaser’s lien which took priority over the mortgage filed during the course of the litigation to secure Warners’ attorney fee debt. This decision is the the only alleged error. We affirm.

The District Court applied Section 71-3-1302, MCA, which reads:

“Purchaser’s lien on real property. One who pays to the owner any part of the price of real property, under an agreement for the sale thereof, has a special lien upon the property, independent of possession, for such part of the amount paid as he may be entitled to recover back, in case of a failure of consideration.”

Section 71-3-1302, MCA (emphasis added). The lower court held that the statute’s “amount paid” included the award. The parties agree that if the award of attorney fees and litigation costs is considered part of the “amount paid”, then Peterson’s award of costs and fees has priority over Warners’ mortgage.

The lower court also held that considerations of equity mandated priority of Peterson’s award of fees and costs over Warners’ mortgage. The lower court reasoned that under the circumstances of this case, it would be unfair to allow the mortgage to defeat the parties’ agreement to award fees and costs to the winner of a lawsuit arising from the contract.

Warners contend that the lower court erred by holding that the lien created by the statute includes Peterson’s costs and fees. To support this argument, Warners cite cases holding the lien limited to expenditures made to purchases which improve the contract property. See Occidental Realty Co. v. Palmer (N.Y. 1907), 117 A.D. 505, 102 N.Y.S. 648, 652 (lien does not include fees for examining title of contract property); Ungrich v. Shaff (N.Y. 1907), 119 A.D. 843, 105 N.Y.S. 1013, 1016 (lien does not include award of attorney fees).

Peterson responds that New York authority provides too restrictive a reading of the Montana statute. According to Peterson, the California Supreme Court, interpreting an identical statute, has included expenditures similar to litigation costs and attorney fees in the lien. See Montgomery v. Meyerstein (Cal. 1921), 188 Cal 459, 199 P. 800, 802 (expenditures for taxes and insurance included in the lien). Peterson characterizes Montgomery as holding that expenditures for improvements, taxes, insurance, maintenance, “and any other amounts expended in reliance upon the contract” must be included in the lien. Peterson also points out that the award for litigation costs and attorney fees compensates for expenditures as provided by the contract.

Better stated, the California Supreme Court’s decision in Montgomery held the purchaser entitled to a lien equaling “the amount of purchase money paid by her and the expenditures she made upon the property, including the taxes and insurance”. Montgomery, 199 P. at 802. The decision also states that the purchaser’s lien may include the return of what has been paid in performance of the contract. Montgomery, 199 P. at 803.

Generally, a purchaser’s lien attaches to the contract property to facilitate recovery of such funds as the purchaser may be entitled to recover, including expenditures for insurance, taxes, and maintenance. 92 C.J.S. Vendor & Purchaser Section 556 (1955). Section 71-3-1302, MCA, conforms to the general rule by directing that the lien equal the amount of the purchaser price already paid by the purchaser. We agree with the California Supreme Court that in the appropriate case, money expended on taxes, insurance, and maintenance may be considered part of the amount of the purchaser price paid under the statute.

However, an award of costs and fees is not part of the value of partial performance which the statute intends to include for recovery through the lien. To stretch the language of the statute to include the award at issue here would be to insert what has been omitted in violation of Section 1-2-101, MCA. Thus, we hold that the District Court decision may not be affirmed on its interpretation of Section 71-3-1302, MCA.

Nevertheless, we agree with the District Court that the equities in this case favor payment of Peterson’s fees and costs > over Warners’ mortgage. Rescissionary remedies properly require such restoration from the losing party to the party entitled to rescission “as is reasonably possible or as may be demanded by equity.” Carey v. Wallner (Mont. 1986), [223 Mont. 260,] 725 P.2d 557, 561, 43 St.Rep. 1706, 1711.

Furthermore, although no lis pendens was filed here, the actual knowledge of Warners and their attorney from the time of service of process that litigation involving the contract property was pending, and the actual knowledge that one possible result of the litigation would be an award of fees and costs by virtue of the terms of the contract, “subjects them to the results of that litigation in the same way that the constructive knowledge imparted by the lis pendens does”. Tuft v. Federal Leasing (Utah 1982), 657 P.2d 1300, 1303. Thus, we affirm because the equities favor Peterson, and because the actual knowledge of the pendency of the suit prevents Warners and their attorney from circumventing the ultimate result of the litigation.

Affirmed.

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


text:
    In re the MARRIAGE OF VALLINA RUTH HOLSTON OSTREM, Petitioner and Appellant, and ROBERT BRUCE HOLSTON, JR, Respondent and Respondent. In re the MARRIAGE OF VALLINA RUTH HOLSTON, n/k/a Vallina Ruth Ostrem, Petitioner and Respondent, and Robert B. Holston, Jr., Respondent and Appellant.
    No. 86-514, 88-164.
    Submitted on Briefs Sept. 1, 1988.
    Decided Oct. 18, 1988.
    763 P.2d 35.

      Robert B. Holston, Jr., Ketchikan, Alaska, pro se.
    Hash, O’Brien & Bartlett, James C. Bartlett, Kalispell, for respondent and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal from the Eleventh Judicial District, in and for the County of Flathead, involves a custody dispute. Appellant, Robert B. Holston, Jr. (Robert), appeals the decision of the District Court, Roy C. Rodeghiero presiding, modifying a previously modified dissolution decree. Judge Rodeghiero’s decision substituted respondent parent Vallina Ruth Holston Ostrem (Vallina) as the custodial parent in place of Robert. Previous to Judge Rodeghiero’s decree modification, the District Court, Michael H. Keedy presiding, modified the parties’ dissolution decree to substitute Robert as the custodial parent in place of Vallina. We affirm Judge Rodeghiero’s decision to return custody to Vallina.

The issues presented by Robert are:

1. Whether the trial court erred in its failure to determine which parent would be the proper custodial parent?

2. Whether there was substantial evidence to make the finding of danger to the physical, mental, moral or emotional health of the children?

3. Whether a fair trial was given when the court failed to consider the court record and past testimony?

4. Whether the trial court abused its discretion by disregarding unimpeached credible evidence as to the children’s custodial environment in Alaska?

5. Whether the trial court erred in failing to find that Vallina’s home environment and/or attitude was no longer endangering since the past decree?

6. Whether the trial court demonstrated a biased and prejudicial treatment of the appellant by issuing ex parte orders and later taking judicial consideration of these orders without giving notice to the appellant?

7. Whether the appellant was denied due process of law or provided the proper administration of justice when the court committed procedural errors as follows:

a. Allowed the testimony of Dr. Monty Kuka, over the objection of Robert, on the dates of August 21,1986 and August 25,1987 without providing Robert be given notice of such appearance.
b. Allowed hearsay testimony over Robert’s objection.
c. Allowed a witness, Christian Holston, to admit a tape recording, listened to it without Robert being present to object to it or hear it.

8. Whether the appellant was denied a fair trial by inviting biased and prejudiced testimony, when the court issued its order dated August 19, 1987, thereby placing the children under the extended control of the mother from their summer visitation start of June 16, 1987 through and inclusive of the hearing dates beginning on August 25, 1987?

.9. Whether a fair trial was given when the court allowed the appellant to be served the order to show cause papers on the evening of August 22, 1987 and then conducted the trial beginning on August 25, 1987?

10. Whether a fair trial was given the appellant when the court considered testimony from an officer of the Court who initiated a child abuse investigation on the appellant, but failed to consider the results of this investigation and failed to seek evidence from Ketchikan, Alaska?

11. Whether the trial court erred in its denial of Robert’s motion to appoint a guardian ad litem.

The relevant facts are briefly as follows: The parties dissolved the marriage by decree entered September 8, 1982. The decree made Vallina the custodial parent subject to reasonable rights of visitation for Robert.

Robert thereafter petitioned to modify the decree to make him the custodial parent alleging that Vallina’s interference with his visitation rights seriously endangered the children. Following hearing, Judge Keedy agreed that Vallina’s interference with Robert’s visitation seriously endangered the children and ordered custody for Robert with reasonable visitation for Vallina. Pursuant to the order the parties’ two children, Harrison and Christian, moved from Vallina’s residence in Kalispell to Robert’s home in Ketchikan, Alaska. At that time Harrison was six and Christian was nine. The two boys lived with Robert through the school year. During that year Robert separated from his second wife, and physically disciplined his stepson in the presence of the children.

Vallina exercised her visitation rights the ensuing summer, and at the end of her visitation period petitioned for modification. The District Court ordered the continuation of Vallina’s visitation pending a hearing on the petition. Following hearing, the District Court modified custody to make Vallina the custodial parent.

Robert, acting pro se on appeal, centers his argument on the proper conclusion to be drawn from the conflicting evidence offered in the lower court. For example, in part “A” of his opening brief, Robert argues that the lower court erred because it: (1) failed to consider Vallina’s intractable denial of his visitation rights, (2) failed to consider the fact that when he had custody he provided liberal visitation for Vallina, and (3) failed to consider Vallina’s denial of contact with the children for Robert during summer visitation in 1987.

Part “B” of appellant’s brief continues Robert’s argument on the evidence in this case. Specifically, Robert contends that there was no showing that the children’s environment had changed since the prior modification.

In Part “C” of the brief Robert argues the District Court erred: (1) by ignoring testimony indicating that the children were healthy, and that their relationship with their father was improving, (2) by giving too much weight to the negative impact of Robert’s separation from his new wife and her stepson and by ignoring the positive impact, (3) by failing to consider the fact that Vallina had moved from Kalispell to Galata, and (4) by failing to consider evidence revealing Robert as a stable and mentally healthy adult.

Robert presents a battle of the experts argument in section “II” of his brief. According to Robert, his expert’s testimony should be given more weight than Vallina’s expert because his expert saw the children on a more regular basis. Robert also presents a review of all the favorable testimony he offered in the lower court.

Despite the evidence provided by Robert for continuing his custody, the lower court found that:

“Rob has proved himself incapable of maintaining or portraying a loving, affectionate, stress-free and abuse-free home environment for the boys.”

A review of the complete record demonstrates that substantial credible evidence supports this finding. Testimony from witnesses called by Vallina refuted testimony offered by Robert. For example, the children testified that they feared their father, and that living with him was an extremely unhappy experience. There was also evidence that without the support of their stepmother Jackie and her son Michael, their fear and anxiety had increased.

Psychologist Monty Kuka testified that continuing Robert’s custody endangered the children’s emotional health. Director of Family Services for the Eleventh Judicial District, Tom Best, testified that his interview with the children showed that their home in Alaska was one of great stress.

It is “not our function to resolve conflict in the evidence.” In re Custody of Holm (Mont. 1985), [215 Mont. 413,] 698 P.2d 414, 417, 42 St.Rep. 504, 507. The evidence provided by Vallina supports the lower court’s decision. Thus, Robert’s argument that the lower court ignored the evidence fails.

Robert also argues that the lower court erred in finding a change of circumstances which endangered the children. Robert asserts that the basis for the change recognized by the lower court was the children’s desire to live with Vallina at the time of the most recent hearing. Robert points out that the children have always wished to reside with Vallina, thus, according to Robert, no change has occurred. We understand the logic of this argument, but we are not persuaded that no change occurred. Prior to Judge Rodeghiero’s decision, the children’s preference for Vallina’s custody was expressed without the benefit of having resided under Robert’s custody for a substantial period of time. Following the year with Robert, the preference for residence with their mother intensified. Thus, this argument fails.

Robert blames Vallina and her family for impeding the adjustment of the children to their new home. However, evidence in the record reveals that the fault for the children’s unhappiness may be attributed to Robert rather than Vallina.

Robert opines that the first modification was designed to eliminate the threat that the children would never develop a good relationship with their father. The second modification, according to Robert, makes that possibility a certainty. However, substantial credible evidence in the record supports the conclusion that Robert’s chances of improving his relationship with the children may be improved by allowing a return of custody to Vallina.

As long as substantial credible evidence supports the decision of the trial judge, it will be affirmed. Holm, 698 P.2d at 416. Modification pursuant to Section 40-4-219(l)(c), MCA, requires a finding that the children’s environment seriously endangers their physical, mental, moral, or emotional health, and the harm likely to be caused by changing the environment is outweighed by benefits from the change. Here, the change from Vallina’s home to Robert’s home proved too bitter a pill for the children to swallow. Evidence indicated that Robert’s custody seriously endangered Christian’s and Harrison’s emotional health. Thus, the record sustains the decision of the lower court.

Robert also argues that Judge Rodeghiero’s failure to fully review the District Court file as it existed after the first modification constitutes an abuse of discretion. This argument reasons that the fact finder could not know of a change without reviewing the conditions leading to the first modification. The argument also follows from Robert’s contention that a review of the conditions which led to the first endangerment finding must precede a return of custody to Vallina.

First, the relevant time period for the endangerment finding was the time the children resided with Robert in Alaska because this is the period occurring after the prior modification. Section 40-4-219, MCA. Second, testimony at the second hearing made the lower court fully cognizant of the danger posed by Vallina’s custody prior to the first modification. Evidence that this danger has been mitigated was provided when Vallina testified prior to the second modification that she would cooperate in arranging adequate visitation for Robert. Thus, there exists no error in regard to the lower court’s failure to review the previously established record.

Several of the issues presented in the issue section of Robert’s brief are not argued in his argument section. However, we have reviewed them and we fail to see cause for reversal in any of them.

AFFIRMED.

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