text:
    GERALD F. ANDERSON, Plaintiff and Appellant, v. RICHARD L. JOHNSON, Defendant and Respondent.
    No. 93-386.
    Submitted on Briefs November 23, 1993.
    Rehearing Denied March 24, 1994.
    Decided March 1, 1994.
    51 St. Rep. 149.
    264 Mont. 66.
    870 P.2d 59.

      For Plaintiff and Appellant: Terry G. Sehestedt, Missoula.
    For Defendant and Respondent: Douglas J. Wold, Wold Law Firm, Poison.
   JUSTICE HUNT

delivered the Opinion of the Court.

Plaintiff/Appellant, Gerald F. Anderson, appeals from a judgment of the Twentieth Judicial District Court, Lake County, finding respondent, Richard L. Johnson, the title owner of property leased by Anderson from Johnson near Flathead Lake, and awarding Johnson damages and costs of suit.

Affirmed.

The parties raise three issues:

1. Did the District Court err when it denied Anderson’s motion for partial summary judgment based on his alternative theories of conclusiveness of deed or adverse possession?

2. Did the District Court err when it found that the September 5, 1973 deed from Anderson to Johnson was executed after the September 7, 1973 deed from Johnson to Anderson?

3. Did the District Court err when it found that Anderson’s possession of the property was permissive and not adverse?

Since about 1958, Anderson and Johnson had been friends. In 1972, Johnson was owner of approximately 15 acres near Flathead Lake as purchaser under a contract for deed. Johnson informally divided the tract into lots with the intent to offer ten to 20-year leases for the lots’ recreational uses.

On August 4, 1972, Johnson and Anderson entered into two nonrenewable written ten-year leases for two of the lots commencing August 1, 1972. The agreements required Anderson to pay Johnson a total of $40 per month as rental, to pay all taxes and assessments imposed on improvements placed on one of the lots, and to pay a pro rata share of any increases in real property taxes for the years 1974 through 1982. Further, the leases afforded Anderson the first opportunity to purchase the lots in the event Johnson platted and subdivided the lots during the lease period.

In late fall 1972, or early 1973, Anderson constructed a nonpermanent geodesic dome on the leased property as provided in the lease agreement. In May 1973, Johnson formally surveyed the two leased lots and in June bought the two lots outright from the seller.

In August 1973, Anderson asked Johnson to loan him the title to the leased property so that Anderson could give a mortgage on the lots to secure a loan to fund his new business enterprise in Colorado. Johnson agreed as a gesture of their friendship and because Anderson’s father represented to Johnson that he would stand behind the obligation.

The parties orally agreed to structure the loan of title as follows: Anderson’s father, an attorney, simultaneously prepared two deeds for conveyance of the lots. He sent one deed to Johnson which required Johnson’s signature and conveyed the two lots to Anderson. Johnson dated and signed that deed on September 7, 1973. Johnson mailed the September 7 deed back to Anderson’s father. As security for the loan of the title, Anderson’s father had prepared a reciprocal deed which transferred the two lots from Anderson back to Johnson, and which he sent to Anderson in Colorado for his signature. The deed from Anderson to Johnson is dated September 5,1973, and notarized by Anderson’s father on that same date. The September 5 deed was a security interest for the loan of the title which Johnson was to put into safekeeping. Anderson or his father recorded the September 7 deed on September 14, 1973. The record is not clear as to whether Johnson received the September 5 deed before or after he had sent the September 7 deed back to Anderson’s father. The parties orally-agreed that Johnson was free to record the deed from Anderson to Johnson at any time, but subject to the mortgage. However, Johnson originally planned to record the September 5 deed when Anderson paid off the mortgage obligation. Soon thereafter, Anderson mortgaged the two lots to a Poison bank.

From 1972 to 1975, Anderson paid the $40 monthly rent on the lots. In 1975, however, Anderson discontinued his rental payments after the parties could not reach terms for sale of the lots to Anderson. The parties did not enter into any written agreement regarding the sale of the lots to Anderson. Their friendship deteriorated. Anderson continued to pay the property taxes on the two lots after 1973, pursuant to the rental agreement. Johnson did not attempt to collect past due rent from Anderson because he knew Anderson became unable to pay both the lease payments and his mortgage payment on the lots. In the late 1970’s, Johnson attempted to collect the past due rent from Anderson with no success. Johnson periodically contacted the Poison bank to check on the status of Anderson’s mortgage. Anderson’s mortgage payments had been kept current.

In early 1979, Anderson left the property after cold weather froze up the dwelling. That year he asked Johnson to provide $7000 in “consideration” to take back the two lots subject to the unpaid balance on the mortgage. Johnson refused, denying any obligation to do so.

Between 1979 and 1985, Johnson did not hear from Anderson or see him on the property. In 1980 or 1981, Johnson fenced off the two lots from the rest of his property which closed off prior access to the two lots. In addition, Johnson put up “no trespassing” signs on the fences. The signs faced his adjacent lots. He shut off the water supply to Anderson’s dwelling after it froze.

Anderson failed to pay all the property taxes on time and in 1979 the property was sold for taxes but later redeemed.

In about 1985, Anderson conveyed the lots to a third party as security for another loan, in contravention of the lease and without Johnson’s approval. Also in 1985, Anderson informed Johnson that he intended to claim the property as his own. In 1992, Johnson learned that the third party had transferred the property back to Anderson. In August 1992, Johnson also learned that Anderson had received a slash permit and cut more than 15 trees from the property, in contravention of the lease agreement. Anderson received between $900 and $1000 for the timber. Johnson had not given Anderson permission to cut the trees.

On August 17,1992, Johnson recorded his September 5,1973 deed from Anderson to reclaim title to the two lots.

In the Twentieth Judicial District Court, Anderson sought cancellation of the September 5,1973 deed, or alternatively for declaratory relief that he was the owner of the property, and sought damages, costs, and fees. Johnson counter-claimed for damages, fees, and costs. On March 31, 1993, Anderson filed a motion for partial summary judgment to quiet title in him to the two lots and denounced any fraud on his part. Johnson cross-motioned for partial summary judgment seeking a determination that he was the lawful owner of the two lots as a matter of law. On April 28,1993, the court denied both motions, finding “a plethora of genuine issues of fact and [that] summary judgment was not appropriate.”

At the time of the bench trial on May 10,1993, Anderson owed the Poison bank $3975.77, plus interest, on the mortgage.

On May 27, 1993, the District Court found that Johnson had superior title to the two lots after recording the September 5, 1973 deed on August 17, 1992, because Anderson had given Johnson the September 5, 1973 deed as security for the loan of the title, and that Johnson had been free to file it at any time. The court awarded Johnson fee simple title of the two lots free and clear from all encumbrances, including Anderson’s $3975.77 mortgage. However, the court granted Anderson the option of making payments upon the encumbrance and keeping it free from default. Finally, the court awarded Johnson his costs of suit.

On June 25, 1993, Anderson filed this appeal from denial of his motion for summary judgment and from the District Court’s findings of facts and conclusions of law and judgment.

ISSUE 1

Did the District Court err when it denied Anderson’s motion for summary judgment based on his alternative theories of conclusiveness of deed or adverse possession?

At the hearing for summary judgment, Anderson argued that summary judgment was appropriate because the material facts before the court were: (1) the explicit and unambiguous deeds that conveyed Johnson’s property to Anderson; (2) Johnson’s acknowledgment that there were no other writings concerning the transfer of title; (3) Johnson’s September 7 deed to Anderson gave Anderson title as the last deed signed and delivered; and (4) that in the alternative, Anderson could claim superior title under the theory of adverse possession.

Summary judgment is appropriate:

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Rule 56(c), M.R.Civ.P.

Although the September 7 deed explicitly and unambiguously transferred the two lots from Johnson to Anderson, in like manner, the September 5 deed transferred the lots from Anderson back to Johnson. These facts could not conclusively establish superior title in Anderson because the parties disputed the facts involving the signing and delivery of the deeds, and the legal effect of the transfers. The District Court properly denied Anderson’s motion for summary judgment because the parties presented genuine issues of fact and law in regards to which deed controlled.

In addition, Anderson argues that summary judgment was appropriate because Johnson acknowledged that the parties entered no written agreement other than the two deeds. The court heard oral argument that the parties had structured the loan of the deed through an oral agreement. The parties had agreed to a certain transaction in the exchange of the deeds and the conditions under which J ohnson could record his reciprocal deed. However, on summary judgment, the parties disputed the terms of the oral agreement, thereby raising genuine issues of material fact. Thus, the District Court properly denied Anderson’s motion for summary judgment despite the absence of writings other than the deeds.

Anderson also argues that summary judgment was appropriate because the September 7 deed from Johnson to him conclusively established his superior title to the property as the last deed signed and delivered. The court disagreed and applied the belief that where Anderson had given the September 5 deed to Johnson as security for the loan of the title, the September 7 deed controlled, being the last recorded deed. The court noted that the date of transfer of real property is presumed to be the date of recording the deed. Anderson asserted that the court misstated the applicable law. As a result, the court properly denied summary judgment because of the genuine issues of law presented.

Finally, Anderson asserts that summary judgment was appropriate because he had superior title under a theory of adverse possession. Anderson asserts that because he had breached the lease agreements by conveying the property to a third party and cutting down trees, his leasehold possession had become hostile and adverse. The court found sufficient evidence to refute Anderson’s claim that his possession of the lots was hostile and adverse to Johnson’s fee simple interest. In fact, the evidence presented could have supported the conclusion that Anderson’s possession had been purely permissive. The court properly denied Anderson’s motion for summary judgment on Anderson’s adverse possession claim.

From the foregoing, we hold that the District Court did not err when it denied Anderson’s motion for summary judgment based on his alternative theories of conclusiveness of deed or adverse possession.

ISSUE 2

Did the District Court err when it found that the September 5, 1973 deed from Anderson to Johnson was executed after the September 7,1973 deed from Johnson to Anderson?

We will uphold the findings of the trial court if they are not clearly erroneous. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603. In so doing, we also will consider whether the findings are supported by substantial credible evidence and the trial court has not misapprehended the effect of the evidence, and whether a mistake has been committed. Interstate Prod. Credit Ass’n. v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.

Anderson argues that the timing of the execution and delivery of the two deeds in 1973 should determine which party now may claim rightful title to the two lots. Anderson asserts that the District Court erred when it found that Johnson did not receive the September 5 deed until after he had sent the September 7 deed back to the Anderson law office. The transmittal letter from Anderson’s father and the accompanying deed which Johnson was to sign were dated September 5, 1973. Johnson testified that he was not certain whether he had received the September 5 deed before or after mailing the September 7 deed. Anderson contends that as the last deed signed and delivered, the September 7 deed conclusively transferred title to him.

Anderson is correct to assert that a grant of real property duly executed is presumed to have been delivered at its date. Section 70-1-509, MCA. However, the District Court heard testimony that the exchange of deeds was intended by the parties to secure a loan of the title to the two lots, and that Johnson had the right to record the September 5 deed at any time, subject to the mortgage.

We have held that an unrecorded deed affecting title to land is valid between the parties. Blakely v. Kelstrup (1985), 218 Mont. 304, 306, 708 P.2d 253, 254 (citing § 70-21-102, MCA). In Blakely, we reasoned that although duly recording a deed has the purpose of giving notice to subsequent purchasers and encumbrancers and of establishing priority, it does not convey title unless the parties have so intended. Blakely, 708 P.2d at 254.

The court rejected Anderson’s argument that the parties’ transaction was a sale. It found the September 7 deed, although duly recorded by Anderson, was subj ect to the conditions of the parties’ oral security agreement, made as part of the loan of the deed transaction.

When interpreting an instrument, the Montana code also provides for consideration of circumstances surrounding its execution:

For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument and of the parties to it, may also be shown so that the judge be placed in the position of those whose language he is to interpret.

Section 1-4-102, MCA.

Similarly, the Montana code provides:

(1)When terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be between the parties and their representatives or successors in interest no evidence of the terms of the agreement other than the contents of the writing ...
(2) But this section does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as defined in 1-4-102, or to explain an extrinsic ambiguity or to establish illegality or fraud.
(3) The term “agreement” includes deeds and wills as well as contracts between parties. [Emphasis added].

Section 70-20-202, MCA; see also § 28-2-905, MCA.

The court properly heard testimony about how the deed exchange came to be and the absence of an exchange of consideration for sale of the two lots.

More important, grant of the property in the September 7 deed did not conclusively establish title in Anderson because on September 5, 1973, Anderson did not have a fee simple interest to convey to Johnson. At that time, Anderson had only a lessee’s possessory interest in the two lots. Although the September 5 deed was perhaps the first deed executed and delivered, the parties did not intend anything other than a simultaneous exchange of deeds, the effect of which was to temporarily convey title in the two lots to Anderson. Only after Johnson transferred the title to Anderson on September 7, 1973, did Anderson have a fee simple interest in the property to reconvey to Johnson. Even then, Anderson’s fee simple interest was subject to the parties’ security deed arrangement.

Anderson’s argument that the September 7 deed granted him rightful title to the two lots denies the parties’ oral agreement as found by the District Court. Even if Anderson ignores the parties’ oral agreement, Montana law provides that “an unrecorded instrument is valid as between the parties and those who have notice thereof.” Section 70-21-102, MCA. The order of events involving the exchange of the simultaneous and reciprocal deeds was irrelevant to the issue of which party retained fee simple title at any given time throughout the 20-year transaction.

The court’s finding that the parties’ transaction was intended as a disguised loan and that Johnson could record his deed from Anderson at any time is supported by substantial credible evidence. We conclude that the District Court did not misapprehend the effect of the evidence, and we are not left with a definite and firm conviction that a mistake was committed.

We hold that the District Court did not err when it found that Johnson did not receive the September 5 deed until after he had sent the September 7 deed back to the Anderson law office.

ISSUE 3

Did the District Court err when it found that Anderson’s possession of the property was permissive and not adverse?

Anderson argues that the District Court’s finding that his “use and occupation of the two lots had been open and actually known of by [Johnson] and with [Johnson’s] permission” was clearly erroneous. Anderson asserts that even if the September 5 deed is controlling, Johnson owns the property subject to Anderson’s adverse possession. He argues that because Johnson took no action when he breached the lease agreement by conveying the lots to a third party and cutting down trees on the lots, his lessee’s possession ripened into adverse possession five years after the lease expired in 1982. Anderson misapplies the law of adverse possession in Montana.

Adverse possession of real property in Montana under a claim founded on an instrument requires that the claim be exclusive of any other right. The applicable statute provides in pertinent part:

When it appears that the occupant or those under whom he claims entered into the possession of the property under claim of title, exclusive of other right, founding such claim upon a written instrument as being a conveyance of the property in question or upon the decree or judgment of a competent court and that there has been a continued occupation and possession of the property included in such instrument, decree, or judgment or of some part of the property under such claim for 5 years, the property so included is deemed to have been held adversely.... [Emphasis added].

Section 70-19-407, MCA.

The record is clear that the parties considered the September 5 deed conveyed by Anderson to Johnson as security for Johnson’s loan of the title to the property to Anderson and that Johnson was entitled to record that deed at any time. As a result, Anderson’s claim to the two lots was not exclusive of Johnson’s right to repossess the lots after September 7, 1973. In addition, Anderson entered into possession of the lots only through the 1972 lease agreement, not through the 1973 written conveyance instrument, as the statute requires. Therefore, Anderson’s claim that his lessee’s possessory interest ripened into adverse possession is misplaced.

We hold that the District Court did not err when it found that Anderson’s possession of the property was permissive and not adverse.

Affirmed.

JUSTICES HARRISON, TRIEWEILER, NELSON and WEBER concur.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    CITY OF BOZEMAN, MONTANA, a Municipal corporation, acting on behalf of the DEPARTMENT OF TRANSPORTATION OF THE STATE OF MONTANA, Plaintiffs and Respondents, v. DONALD D. VANIMAN and CECILIA R. VANIMAN, Co-Trustees of Steelhead Ranches, a Trust, Defendants and Appellants.
    No. 93-398.
    Submitted on Briefs December 2, 1993.
    Decided March 1, 1994.
    51 St.Rep. 154.
    264 Mont. 76.
    869 P.2d 790.

      For Defendants and Appellants: Michael G. Garrity, Kirwan & Barrett, P.C., Bozeman.
    For Plaintiffs and Respondents: Peter S. Lineberger, Lineberger, Walsh & McKenna, P.C., Bozeman.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Defendants Donald D. and Cecilia R. Vaniman appeal from an order of the Eighteenth Judicial District Court, Gallatin County, which issued preliminary condemnation against the Vanimans’ property. We reverse and remand.

We rephrase the issue on appeal as follows: Whether the District Court erred by issuing the preliminary condemnation order condemning appellants’ property for construction, reconstruction, maintenance and operation of an off-ramp to the eastbound lane of Interstate 90, a controlled-access highway, and for an adjoining rest area and visitor center facility on the property line southwest of the off-ramp, after concluding that the City of Bozeman Chamber of Commerce’s intended use and operation of the proposed rest area and visitor center as a corporate headquarters was not specifically before the court at the preliminary condemnation hearing.

Pursuant to contractual agreement, the City of Bozeman (City) is assisting the State of Montana, Department of Transportation (State), in this action (the City and State are hereinafter occasionally referred to as the respondents). The respondents sought condemnation of the Vanimans’ 8.712 acre parcel of property to build a rest area and visitor center located along Interstate 90 near Bozeman, Montana. They chose the Vanimans’ property after considering, among other things, traffic and safety matters; the site will rest in the middle of the longest stretch of interstate highway in Montana which currently does not have a rest area.

The project is known to the respondents as the North 19th Avenue Interchange project. It is a demonstration project, where federal, state and city funds have been commingled to fund construction. The total cost of the project is estimated at $14,000,000.

The City conferred with the City of Bozeman Chamber of Commerce (Chamber), an incorporated entity which serves the interests of Bozeman area businesses, about the possibility of the Chamber relocating its corporate headquarters at the proposed rest area and visitor center. According to records and testimony concerning their discussions, the Chamber would pay approximately $200,000 for the construction of its allocated corporate office space at the visitor center, staff the center and maintain the rest area grounds. Approximately 2,000 square feet of the 7,080 total square feet in the visitor center would be used to house Chamber corporate offices.

The City and the Chamber have not reduced any of their negotiations to a formal contract. State and federal authorities, however, have informed the City that federal funds are not available to fund the construction of any proposed Chamber offices.

To further the construction process, respondents submitted a written offer to purchase the Vanimans’ property, which the Vanimans rejected. The State thereafter adopted a condemnation order against the Vanimans’ property on March 24,1993. At a preliminary condemnation hearing, the District Court confirmed the State’s condemnation. The Vanimans appeal.

Did the District Court err by issuing the preliminary condemnation order condemning appellants’ property for construction, reconstruction, maintenance and operation of an off-ramp to the eastbound lane of Interstate 90, a controlled-access highway, and for an adjoining rest area and visitor center facility on the property line southwest of the off-ramp, after concluding that the City of Bozeman Chamber of Commerce’s intended use and operation of the proposed rest area and visitor center as a corporate headquarters was not specifically before the court at the preliminary condemnation hearing?

The legislature’s grant of the eminent domain power to governmental bodies must be strictly construed. State v. Aitchison (1934), 96 Mont. 335, 30 P.2d 805. Private real property ownership is a fundamental right, Art. II, § 3, Mont.Const, and any statute which allows the government to take a person’s property must be given its plain interpretation, favoring the person’s fundamental rights. See § 1-2-101, MCA; see also § 1-2-104, MCA.

Eminent domain is the State’s right to take private property for public use. Section 70-30-101, MCA; Art. II, § 29, Mont.Const. The due process rights of the party whose property is taken for public use are protected by statutes providing the procedures for eminent domain and by the constitutional provision for just compensation. Montana Talc Co. v. Cyprus Mines Corp. (1987), 229 Mont. 491, 748 P.2d 444.

The condemnor must initially establish facts indicating that the taking is necessary. Once sufficient evidence has been established, the person seeking to show that the taking is excessive or arbitrary has the burden of proof in a condemnation action appeal. Lincoln/Lewis & Clark County Sewer Dist. v. Bossing (1985), 215 Mont. 235, 696 P.2d 989. The court may be called upon to decide whether the condemnation taking is for public use, whether public interests require the taking, and whether the use is necessary and authorized by law. See § 70-30-111, MCA; Bossing, 696 P.2d at 991; see also Montana Power Company v. Bokma (1969), 153 Mont. 390, 397, 457 P.2d 769, 774.

Dining the trial court’s review, it must make findings regarding the necessity of the taking. See Bossing, 696 P.2d at 991. Generally, where the legislature has granted the government the power of determining the necessity to exercise eminent domain, the government’s finding of necessity is a political decision which will not be overturned by the court absent proof of arbitrariness by clear and convincing evidence. Montana Power Company v. Fondren (1987), 226 Mont. 500, 737 P.2d 1138.

On appeal before this Court, the District Court’s findings of fact are subject to the clearly erroneous standard of review. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. This Court has specifically adopted a three-part test to determine whether findings are clearly erroneous: first, the Court determines whether the findings are supported by the record; second, the Court determines whether the trial court has misapprehended the effect of the evidence; and third, if the finding in question is supported by the record, the Court considers whether a mistake has been made. Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 820 P.2d 1285. Additionally, we review the court’s conclusions of law to determine whether the conclusions are correct. Steer, Inc., 803 P.2d at 603.

The rest area and visitor center use of the Vanimans’ property is authorized by law as a public use. See §§ 60-1-102, 60-3-101, 60-4-103(4), 70-30-102(1) and (2), 70-30-110 and 70-30-111, MCA; 23 CFR Ch.I, §§ 752.7, 752.8, 752.11. Indeed, the record discloses that Cecilia Vaniman acknowledged the State’s authority to condemn the entire 8.712 acre parcel of property for the purpose of constructing a rest area and visitor center:

Q. As I understand it, you [Cecilia Vaniman] do not contest the authority of the State of Montana to condemn property for rest areas and informational sites, is that correct?
A. That’s correct.
Q. So the only contest here has to do with the fact that the City and the chamber have been talking about putting their corporate offices there, is that correct?
A. That’s correct.
Q. Okay. You understand, don’t you, from [the architect’s] testimony Friday, that if the rest area were put in this same location next to [the highway off-ramp], it would still require the total taking, is that correct?
A. That’s my understanding of their design, yes.
Q. Okay. So the fact that the chamber offices are in there actually has no effect on your interest in the property. If they took the chamber office out but still put the rest area there, you would have no objection, correct?
A. It’s my understanding that it wouldn’t make any difference.
Q. My question is, if there were no chamber office there, then from what you just said, you wouldn’t object to the placing of the rest area there?
A. That’s correct.
Q. And if it had an informational site but no offices, you wouldn’t object, is that correct?
A. That’s correct.

The record also discloses that the District Court acknowledged the State’s authority to condemn the Vanimans’ property, but had reservations about the validity of the Chamber’s involvement in the project:

[The court’s] question is this: We are contemplating a total taking here, in any event. The issue seems to narrow itself down to whether or not out of the 7,000 square feet of the visitor center it’s going to be permissible to have 2,000 square feet of that utilized by the chamber of commerce. That has no effect, if I recall a question I made of a witness, on the taking. They’re going to take it regardless. Query: Do I have to rule on the validity of the use of that 2,000 square feet by the chamber of commerce?

In its findings of fact the court noted:

5. Plaintiffs contemplate that the Bozeman Area Chamber of Commerce, a private, non-profit corporation will occupy a portion of the information/visitor center building .... In addition, there has been discussion between the City of Bozeman, and the Chamber of Commerce concerning devoting about thirty percent (30%) of the area of the building constructed for the information/ visitor center for utilization by the Chamber for its corporate offices — in return for which the Chamber will pay the City the sum of $200,000.00, and provide staffing for the information/visitor center.
The State of Montana has informed the City of Bozeman that Federal Department of Transportation funding for the project cannot be used to fund the corporate offices of the Chamber of Commerce. Section 70-3-111 M.C.A. generally requires that property may be condemned only in the public interest, for public purposes. Section 60-5-110 M.C.A. specifically provides that, with the exception of motorist information signs, no commercial enterprise or structure shall be constructed or operated on the publicly owned right-of-way of a controlled access highway or facility.

In its conclusions of law, the court deferred judgment on the question of whether the Chamber, in agreement with the City, intends to occupy a portion of the visitor center:

9. The use and operation of a portion of the information/visitor center site by the Bozeman Chamber of Commerce for its corporate offices is not specifically before the Court in this proceeding. There is no contract between the Plaintiffs and the Chamber, and for the Court to rule on the validity of such arrangement, it would necessarily have to base its ruling on conjecture, and not being so disposed, the Court refuses to rule on the issue.

Concomitant with the above finding and conclusion, several pieces of evidence contained in the record prove the existence of the City of Bozeman and the Chamber’s intent to enter into an agreement to locate the Chamber’s corporate offices at the proposed rest area and visitor center:

— the Chamber’s Articles of Incorporation document, filed with the Secretary of State, which sets forth the commercial activity of the Chamber.
— a copy of the Chamber’s annual report, containing a Bozeman Daily Chronicle news item which refers to the visitor center Chamber office.
— a January 10, 1992 letter from the City of Bozeman Public Service Director to the Chamber, clearly specifying the plan to utilize a portion of the visitor center structure for Chamber offices.
— an April 1,1992 letter from the Chamber president to the City manager which states the Chamber is “committed to go ahead with the visitor’s center/chamber office project....”
— a March 10, 1993 “Memo of Understanding” between the City of Bozeman and the Chamber setting forth additional City/Chamber agreements, including a fifty-year lease (for one dollar per year) of the Chamber portion of the visitor center, and the agreement that the Chamber will pay $200,000 toward that portion of the visitor center to be utilized for its offices.
— the direct testimony of the Chamber’s Chairman, stating that the Chamber has negotiated a buy/sell agreement to sell its current office space, and that the closing is contingent upon the Chamber relocating in the visitor center.

We hold that it was error for the District Court to fail to consider this evidence when determining whether the respondents validly exercised their eminent domain power over the Vanimans’ property. The court, in so doing, violated the Vanimans’ due process rights. We therefore reverse the court’s preliminary condemnation order and conclusions of law as they relate to the Chamber’s participation in the North 19th Avenue Interchange Project and remand the case for proceedings consistent with this opinion, specifically to determine whether the Chamber’s involvement is de minimis.

Reversed and remanded.

JUSTICES HARRISON, GRAY, HUNT, TRIEWEILER, NELSON and WEBER concur.


text:
    CHERYL RAE HUNTER, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Respondent.
    No. 93-514.
    Submitted on Briefs January 13, 1994.
    Decided March 1, 1994.
    51 St.Rep. 158.
    264 Mont. 84.
    869 P.2d 787.

      For Petitioner and Appellant: Teresa M. Thompson, Modine & Thompson, Missoula.
    For Respondent and Respondent: Joseph P. Mazurek, Attorney General; George Schunk, Assistant Attorney General, Helena; Robert Deschamps, III, County Attorney, Betty Wing, Deputy County Attorney, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The driver’s license of Cheryl Rae Hunter was seized pursuant to § 61-8-402, MCA (1991), for refusal to submit to a blood alcohol concentration test. Hunter petitioned the District Court for the Fourth Judicial District, Missoula County, to reinstate her license on grounds that it was wrongly seized. The District Court denied her petition. We affirm.

We restate the issues as:

1. Did the District Court err in placing the burden upon Hunter to prove she was unable to take the breathilyzer test and in ruling that she did not meet her burden of proof?

2. Did the court err by failing to acknowledge a withdrawal by Hunter of her refusal to submit to the breathilyzer test?

Cheryl Rae Hunter was arrested for driving under the influence on May 12,1993. At the police station, a sheriff’s deputy read her the implied consent law and then asked if she wished to take a breath test. She consented and made five or six attempts at blowing into the breathilyzer, but did not blow hard enough to activate the machine. The officer told her they could return to the breath test later, and proceeded to conduct other sobriety tests. When they returned to the breath test, Hunter stated that she believed she had performed enough tests. The officer seized her license and determined that she had refused the breath test.

Hunter petitioned the District Court for a hearing and asked that her driver’s license be reinstated pursuant to § 61-8-403, MCA(1991). At the hearing, the videotape of Hunter’s arrest was admitted into evidence. The court denied Hunter’s request for reinstatement of her license because: (l)“[i]t is evident from [the videotape] that [Hunter] did not make a sincere effort to blow into the Breathilyzer instrument”; (2) Hunter did not request another form of testing; and (3) Hunter did not advise the officer that she was incapable of blowing into the breathilyzer or that she suffered from asthma. Hunter appeals.

ISSUE 1

Did the District Court err in placing the burden upon Hunter to prove she was unable to take the breathilyzer test and in ruling that she did not meet her burden of proof?

Section 61-8-402, MCA (1991), provides, in relevant part:

(1) Any person who operates ... a vehicle... shall be deemed to have given consent ... to a test of his blood, breath, or urine for the purpose of determining any ... presence of alcohol in his body[.]... The arresting officer may designate which test or tests shall be administered.
(3) If a driver under arrest refuses upon the request of a peace officer to submit to a test designated by the arresting officer as provided in subsection (1), none shall be given, but the officer shall, on behalf of the department, immediately seize his driver’s license.

Under § 61-8-402(1), MCA (1991), the arresting officer designates which test for blood alcohol concentration is administered to a DUI defendant. The statute does not give the defendant a right, as Hunter claims, to demand that the officer provide another type of testing. Further, the statute contains no requirement that the officer offer a second type of test, even if the defendant is unable to complete the test of the officer’s choice.

The remedy available if a peace officer erroneously determines that a person has refused to submit to the test the officer has chosen is to petition for reinstatement of the driver’s license pursuant to § 61-8-403, MCA, as Hunter has done. Section 61-8-403, MCA, provides that, if the court determines the officer was wrong in concluding that the petitioner refused to submit to the test, the petitioner is entitled to a driver’s license. A petition to reinstate a license is a civil case, separate from the criminal charge of driving under the influence. Maney v. State (1992), 255 Mont. 270, 274, 842 P.2d 704, 706. The burden of proof is upon the petitioning party. See § 26-1-401, MCA.

The only evidence of Hunter’s inability to complete the breathilyzer test was her own unsupported testimony at the hearing in District Court. Hunter’s words and actions in the videotape contradict that testimony. She attempted to blow into the breathilyzer five or six times without stating that she could not complete the test because of a physical ailment. She stated to the officer that she was not ill, was not taking medication, and did not have epilepsy, diabetes, or any other physical defects. She did not request another type of test of her blood alcohol concentration. Instead, she argued with the officer after he informed her that she did not complete the breath test. Further, Hunter did not offer any medical evidence to support her testimony in the District Court.

The District Court heard Hunter’s testimony and viewed the videotape of the testing procedure. After reviewing the record, we hold that the court did not err in ruling that Hunter did not meet her burden of proving that she was unable to perform the breathilyzer test.

ISSUE 2

Did the court err by failing to acknowledge Hunter’s withdrawal of her refusal to submit to the breathilyzer test?

Hunter argues that she retracted her refusal to try again on the breathilyzer “when she told the Deputy that she would do anything required of her and asked if there was anything more she should do.” The videotape shows that this occurred after Hunter told the officer she did not wish to try the breathilyzer again because she thought she had fulfilled her lawful obligations. In offering generally to do anything more which she was required to do, Hunter did not clearly withdraw her specific refusal to submit to the breathilyzer test.

Furthermore, the officer was not bound to accept a withdrawal of the refusal to submit to the breathilyzer test. Hunter cites cases from other jurisdictions which have adopted the minority rule that subsequent consent may cure a prior refusal unless the delay would affect the test result. E.g., Gaunt v. Motor Vehicle Division, Department of Transportation (Ariz. Ct. App. 1983), 666 P.2d 524, 527-28. However, the minority rule has been considered and rejected by this Court. In Johnson v. Division of Motor Vehicles (1985), 219 Mont. 310, 711 P.2d 815, we quoted the following reasoning:

[P]ermitting a delayed test at the subsequent offer of the motorist would require officers to wait and see if there was a change of mind by the refusing motorist, and would require officers to forego other responsibilities in order to arrange the belated test — all contrary to the clear intent behind the implied consent law that the test be submitted and completed expeditiously. [Citation omitted.]

Johnson, 711 P.2d at 818. We restate the rule that, in Montana, subsequent consent does not cure a prior refusal to submit to a blood alcohol test.

We hold that the District Court did not err in failing to acknowledge a withdrawal by Hunter of her refusal to submit to a breathilyzer test.

Affirmed.

JUSTICES GRAY, HUNT, TRIEWEILER and WEBER concur.


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CHRIS MAHONEY, Defendant and Appellant.
    No. 93-501.
    Submitted on Briefs January 7, 1994.
    Decided March 3, 1994.
    51 St.Rep. 160.
    264 Mont. 89.
    870 P.2d 65.

      For Appellant: Chris Mahoney, Deer Lodge, pro se.
    For Plaintiff-Respondent: Brent Brooks, Deputy Yellowstone County Attorney, Billings; Joseph P. Mazurek, Attorney General, Gregg Coughlin, Assistant Attorney General, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

Chris Mahoney appeals an order of the District Court of the Thirteenth Judicial District, Yellowstone County, denying his motion to withdraw his guilty plea. We affirm.

The issue on appeal is whether the District Court abused its discretion when it denied defendant’s motion to withdraw his guilty plea.

BACKGROUND

On or about May 29, 1989, at approximately 7:00 p.m., Chris Mahoney went to a Town Pump in Billings where Beth Brandt was working the night shift. Having previously purchased a soft drink and having left the store, he returned at about 8:30 p.m. and engaged Ms. Brandt in conversation. Mahoney was in the store about 9:00 p.m., closing time, when Ms. Brandt asked him to leave so she could close the store. Mahoney walked out of the store followed by Ms. Brandt who then hung up a “closed” sign near the door. She walked back inside through the door, and, as she turned to lock the door from the inside, the defendant pushed it open, pushing Ms. Brandt away from the door in the process. He demanded she lock the door, and then prevented her attempts to leave through the door.

Ms. Brandt attempted to scream, but Mahoney covered her mouth with his hand and forced her to the floor near the cash register. As she struggled, the defendant kept telling her to lock the door. He forced her into a squatting position facing away from him on the floor. Mahoney then produced a knife from his coat and began stabbing her. After stabbing her repeatedly and in that process severely lacerating her neck, exposing her carotid artery, he restrained her, forcibly, partially disrobed her and,"... still dressed, began to rub his penis up and down against the back of the victim’s hands as she held them in front of her genitals.”

When he saw a large amount of blood from her wounds, he stopped his actions, went around the checkout counter and called the Billings police, reporting that he had cut a clerk and that an ambulance was needed. According to the affidavits in support of the information and amended information subsequently filed, when the police arrived at the scene, Mahoney was cooperative, Miranda warnings were read, and he provided a factual account of the incident.

Mahoney was brought before the Thirteenth Judicial District Court on June 1,1989, without counsel and in the custody of a deputy sheriff. The County Attorney made and filed a motion, supported by affidavit, for leave to file the information against Mahoney charging him with aggravated assault. Leave was granted by the court to file the information; a copy of the information, motion and affidavit was given to Mahoney; counsel was appointed; and the arraignment was continued to June 8, 1989. On June 9, 1989, on defense counsel’s motion, the court continued the arraignment again, pending Ma-honey receiving a psychiatric evaluation.

The State filed a motion and affidavit for leave to file an amended information on July 12, 1989, and gave notice to defense counsel. Mahoney and his counsel appeared before the District Court on July 13, 1989, and the State’s motion to amend the information was granted. The amended information charged Mahoney with attempted deliberate homicide and attempted sexual intercourse without consent. Mahoney pled not guilty to the offenses at that time. A psychiatric evaluation was ordered on July 17, 1989, and a report of that evaluation was subsequently filed with the District Court.

On October 18, 1989, a proceeding was held in which Mahoney, represented by counsel, withdrew his plea of not guilty and entered a plea of guilty to the offenses charged. Mahoney was interrogated by the District Court Judge about his understanding of the consequences of his guilty plea, and he was questioned about his understanding of the “Acknowledgement of Waiver of Rights by Plea of Guilty,” which he had read, discussed with his attorney and signed. The District Court concluded that Mahoney’s change of plea was knowingly and voluntarily made and accepted his plea of guilty. There was no plea agreement.

After a presentence report was filed, Mahoney appeared with counsel and was sentenced on November 22, 1989, to 40 years in the State Prison for the crime of attempted deliberate homicide, 18 years for the crime of attempted sexual intercourse without consent and an additional eight years for the use of a weapon. The sentences were ordered to be served consecutively, Mahoney was designated a dangerous offender and conditions were imposed in the event of his parole.

Mahoney subsequently filed a motion to withdraw his guilty plea on July 10, 1992. The District Court denied his motion on June 29, 1993, and Mahoney’s notice of appeal was filed on August 26,1993.

DISCUSSION

In reviewing cases involving a trial court’s refusal to allow a defendant to withdraw a plea of guilty, this Court will determine whether the trial court abused its discretion. State v. Reynolds (1992), 253 Mont. 386, 390, 833 P.2d 153, 155.

Section 46-16-105(2), MCA (1991), states that a court may permit a guilty plea to be withdrawn and a non-guilty plea substituted, for good cause, at any time before or after judgment. The following three factors are considered by this Court when determining whether a district court erred in refusing to allow the defendant to withdraw his guilty plea:

1. The adequacy of the District Court’s interrogation at the time the plea was entered as to the defendant’s understanding of the consequences of his plea;
2. the promptness with which the defendant attempts to withdraw the prior plea; and
3. the fact that the defendant’s plea was the result of a plea bargain.

State v. Walker (1986), 220 Mont. 70, 72, 712 P.2d 1348, 1350. As to the first factor, we determine that the District Court’s interrogation as to Mahoney’s understanding of the consequences of his plea was adequate. A judge’s interrogation of a defendant seeking to enter a guilty plea is sufficient if the judge:

"... examines the defendant, finds him to be competent, and determines from him that his plea of guilty is voluntary, he understands the charge and his possible punishment, he is not acting under the influence of drugs or alcohol, he admits his counsel is competent and he has been well advised, and he declares in open court the fact upon which his guilt is based.”

Walker, 712 P.2d at 1350, citing State v. Lewis (1978), 177 Mont. 474, 485, 582 P.2d 346, 352. Areview of the record indicates that Mahoney was sufficiently interrogated by the judge at the change of plea proceeding. The questioning met all the requirements listed above, including a recitation of the facts upon which his guilt is based.

Additionally, Mahoney was questioned by the district judge as to his understanding of the “Acknowledgement of Waiver of Rights by Plea of Guilty” document. He stated that he discussed the document’s contents with his attorney, read the document, filled in the appropriate blanks and signed the document. This Court has previously held that a written acknowledgement, combined with oral questioning of the defendant, constitutes adequate interrogation. Walker, 712 P.2d at 1350.

As to the second factor, Mahoney filed his motion to withdraw his guilty plea more than two and one half years after he was sentenced. The State persuasively argues that the District Court was correct in its determination that Mahoney’s motion to withdraw his guilty plea was untimely. “In general, filing [a] motion to withdraw a guilty plea over a year after entry of the guilty plea is untimely.” State v. Reynolds (1992), 253 Mont. 386, 391, 833 P.2d 153, 156. (Citation omitted.) However, without ruling on the timeliness of defendant’s motion and in view of the seriousness of the crimes to which the defendant pled guilty and the fact that the issue raised regarding the abandonment of his attempts to commit those crimes is one of first impression in Montana, we will proceed to discuss and to decide this case on the substantive issues.

The third and final factor, whether the defendant’s guilty plea was the result of a plea bargain, is not an issue because in this case, there was no plea bargain.

Mahoney presents three arguments in support of his contention that his plea of guilty should be withdrawn: 1) prosecutorial vindictiveness, 2) he could not be guilty of the crimes charged, and 3) ineffective assistance of counsel. We discuss these arguments in turn.

1. PROSECUTORIAL VINDICTIVENESS

First, Mahoney states that the State was impermissibly vindictive when it increased the charges from aggravated assault to attempted homicide and attempted sexual intercourse without consent. He asserts that the amended information was based on the same available evidence cited in the original information.

The State cites State v. Hilton (1979), 183 Mont. 13, 18, 597 P.2d 1171, 1174, for its contention that, since he pled guilty to the offenses charged, Mahoney cannot now be heard to complain about any issue, save the voluntariness of his plea. We agree. Hilton states that “[o]nce a defendant properly pleads guilty he waives all factual defenses as well as constitutional violations which occur prior to the plea.” Hilton, 597 P.2d at 1174. On pleading guilty, the defendant may only attack the voluntariness and knowing character of the plea. Hilton, 597 P.2d at 1174. Therefore, given the defendant’s voluntary and knowing plea of guilty, there is merit to the State’s argument that Mahoney has waived his claims of prosecutorial vindictiveness.

Moreover, the State having strictly followed the statutory procedure for amending the information early in the case and before he entered a plea to the original information militates against Ma-honey’s claim of prosecutorial vindictiveness. Section 46-11-403, MCA (1987), which was the statute in effect at the time the prosecutor filed his motion to amend the information, sets forth the procedural requirements for amending an information in matters of substance. The statute authorizes such an amendment with leave of court at any time not less than five days before trial.

In moving to amend the information, the State complied in all respects with the procedural requirements of § 46-11-403, MCA (1987), and the District Court properly granted the State leave to amend. The affidavit supporting the amended information contains a more detailed account of the incident than the account provided in the original affidavit and states facts that show the existence of probable cause to support the charges of attempted deliberate homicide and attempted sexual intercourse without consent.

‘When the facts of a case support a possible charge of more than one crime, the crime to be charged is a matter of prosecutorial discretion.” (Emphasis added.) State v. Booke (1978), 178 Mont. 225, 230, 583 P.2d 405, 408. See also § 46-11-404(1), MCA (1987).

Furthermore, we find no support in the record for any charge of prosecutorial vindictiveness; the prosecutor merely exercised the discretion which the law provides and amended the information in accordance with the procedural requirements provided by statute to charge crimes for which there was clearly probable cause. While that is all that is required, here, it is also clear that the defendant was at all time represented by counsel; that he was given notice of the State’s intention to amend; that no objection was raised to the prosecutor’s motion at the time it was made or granted; and that the motion was made and granted very early in the case before the defendant entered a plea to the original information and before a trial date was even set.

Had Mahoney any legitimate concerns about the charges being filed as a result of prosecutorial vindictiveness, he had more than adequate opportunity to raise those before pleading guilty to the amended information. Not only did Mahoney waive his right to contest the amendment of the information by failing to object and by pleading guilty, but, and just as importantly, the amendment of the information was accomplished in accordance with the law, and there is no indication in the record of any improper motivation by the State.

We conclude that Mahoney has failed to establish that the charges to which he pled guilty were filed as a result of prosecutorial vindictiveness.

2. VOLUNTARY ABANDONMENT OF THE CRIMES CHARGED

Second, Mahoney argues that he could not be found guilty of the crimes charged because he voluntarily abandoned his criminal efforts. The Montana “attempt” statute in effect when Mahoney pled guilty provides that, “[a] person commits the offense of attempt when, with the purpose to commit a specific offense, he does any act towards the commission of such offense.” (Emphasis added.) Section 45-4-103(1), MCA (1987). State v. Ribera (1979), 183 Mont. 1, 11, 597 P.2d 1164, 1170. Further:

This Court has stated that an overt act ‘must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation.’ In addition, the Court stated that ‘there must be at least some appreciable fragment of the crime committed, and it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter.’

Ribera, 597 P.2d at 1170, citing State v. Rains (1917), 53 Mont. 424, 164 P. 540.

In this case, Mahoney accosted Ms. Brandt, prevented her escape from the store and then stabbed his struggling victim twelve times, causing serious injuries, including damage to her lungs, liver and kidneys. It can hardly be argued that this is not “at least some appreciable fragment of the crime [of deliberate homicide] committed [and that his actions reached] far enough towards the accomplishment of the desired result to amount to the commencement of the consummation.” Ribera, 597 P.2d at 1170.

Moreover, Mahoney forcibly pulled down Ms. Brandt’s pants, lifted her shirt up, cut her bra straps and attempted to have sexual intercourse with her. Notwithstanding that she was seriously wounded from the stabbing, Ms. Brandt resisted the defendant’s attack by holding her hands in front of her genitals to prevent him from having sexual intercourse. Mahoney himself stated in the proceeding to change his plea to guilty that his intent was to have sexual intercourse with the victim. These actions by Mahoney likewise unequivocally established that at least some fragment of the crime of sexual intercourse without consent was committed and that such actions reached far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. Ribera, 597 P.2d at 1170.

There is no doubt from the conduct of the defendant in this case that, with the purpose to commit the crimes of deliberate homicide and sexual intercourse without consent, he did “... act[s] toward the commission of such offense[s].” Section 45-4-103(1), MCA (1987).

However, Subsection (4) of § 45-4-103, MCA (1987), provides a defense to the offense of attempt. It is on this defense which Mahoney relies for his claim that he could not be found guilty of the crimes to which he pled guilty. Section 45-4-103(4), MCA (1987), provides that:

A person shall not be liable under this section if, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, he avoided the commission of the offense attempted by abandoning his criminal effort.

Mahoney offers his telephone call to the police as evidence that he voluntarily and completely renounced his criminal purpose by abandoning his efforts to commit deliberate homicide and sexual intercourse without consent.

The amended information discloses that after preventing her escape from the store and after stabbing the victim numerous times, Mahoney forcibly tried to disrobe the struggling Ms. Brandt, and “then began to rub his penis up and down against the back of the victim’s hands as she held them in front of her genitals. When he saw a large amount of blood from her wounds he stopped, went around the checkout counter and called Billings police.”

We are assisted in answering the question of whether Mahoney voluntarily and completely renounced his criminal purpose and abandoned his criminal effort by the decision of a sister state which has extensively explored this issue.

The State of Michigan recognizes the affirmative defense of voluntary abandonment but qualifies the definition of voluntary abandonment, stating:

Abandonment is not ‘voluntary’ when the defendant fails to complete the attempted crime because of unanticipated difficulties, unexpected resistance, or circumstances which increase the probability of detention or apprehension. (Emphasis added.)

People v. McNeal (1986), 152 Mich.App. 404, 393 N.W.2d 907, 912, citing People v. Kimball (1981), 109 Mich.App 273, 311 N.W.2d 343, 349. The defendant in Kimball was charged with and convicted of attempted unarmed robbery. He argued that he voluntarily abandoned his criminal enterprise before the crime was consummated; therefore, he could not be found guilty of attempt.

The Kimball court concluded that voluntary abandonment was a defense to a prosecution for criminal attempt (see § 45-4-103(4), MCA.). Kimball, 311 N.W.2d at 349. However, the court stated emphatically, that abandonment was not “voluntary” when the criminal endeavor was not completed because of unanticipated difficulties or unexpected resistance. Kimball, 311 N.W.2d at 349. Although Michigan’s attempt statute differs from ours, we agree with the approach set forth in Kimball.

In arriving at its conclusion that voluntary abandonment is a defense to a criminal attempt, the Kimball court extensively reviewed authoritative commentary on criminal attempt law, citing Perkins, Criminal Law (2d ed), ch. 6, § 3, p.590, among others. Perkins states that “although a criminal plan has proceeded far enough to support a conviction of criminal attempt, it would be sound to recognize the possibility of a locus penitentiae so long as no substantial harm has been done and no act of actual danger committed.” Kimball, 311 N.W.2d at 347. (Underlined emphasis added.) Perkins prefaces the above cited statement in his treatise on criminal law, by commenting that there are limitations to the use of abandonment as a defense to the crime of attempt. “Attempted murder cannot be purged after the victim has been wounded, no matter what may cause the plan to be abandoned.” “Perkins” at 590.

We agree with Perkins’ logic, particularly in this case, where the defendant prevented the victim’s escape, stabbed her twelve times causing grievous injury and then tried to forcibly rape her. At this point, substantial harm had been done and acts of actual danger had, indeed, been committed. Moreover, Mahoney’s actions represent at least “some appreciable fragment of the crime [to be] committed.” Ribera, 597 P.2d at 1170.

Nor did Mahoney voluntarily and completely renounce his criminal purpose by abandoning his attempt to commit the crimes of deliberate homicide and sexual intercourse without consent, as required by § 45-4-103, MCA (1987). Even after the victim had been repeatedly stabbed, she was able to thwart the defendant’s attack by holding her hands over her genitals, trying to prevent him from engaging in sexual intercourse with her. As stated in Kimball and McNeal, an abandonment is not voluntary if the defendant fails to complete the crime because of “unanticipated difficulties [or] unexpected resistance.” Kimball, 311 N.W.2d at 349; McNeal, 393 N.W.2d at 912.

Mahoney did not abandon his criminal conduct until he met with unanticipated difficulties and unexpected resistance. He only called the police after observing that the victim was bleeding profusely from the wounds which he inflicted and because she struggled and successfully protected herself from being raped. Mahoney’s conduct is not a manifestation of voluntary and complete renunciation of criminal purpose and an abandonment of criminal effort. That he did not actually consummate the crimes of sexual intercourse without consent and deliberate homicide was due not to any voluntary renunciation of criminal purpose on his part but to good fortune that the victim was not killed by the stabbing and the simple fact that circumstances occasioned by his brutal attack and the victim’s continued resistance made further criminal effort impracticable. Mahoney’s self-serving and conclusory arguments to the contrary exalt form over substance.

Under the test enunciated above, i.e. that there is no voluntary and complete renunciation of criminal purpose and abandonment of criminal effort, where substantial harm has been done and acts of actual danger have been committed, or where the defendant fails to complete the attempted crime because of unanticipated difficulties, unexpected resistance or circumstances which increase the probability of detention or apprehension; under § 45-4-103(1) and (4), MCA (1987), and our prior case law; and under the facts of this case, we conclude that Mahoney committed the offenses of attempted deliberate homicide and attempted sexual intercourse without consent and that he has failed to establish his abandonment defense. Accordingly, Mahoney’s argument that he could not have been found guilty of the crimes of attempted deliberate homicide and attempted sexual intercourse without consent to which he pled guilty is without merit.

3. INEFFECTIVE ASSISTANCE OF COUNSEL

Finally, Mahoney argues that he received ineffective assistance of counsel. To determine whether a defendant received ineffective assistance of counsel, the court must conduct the two-part Strickland test, adopted by this Court in State v. Robbins (1985), 218 Mont. 107, 114, 708 P.2d 227, 232. In that case we stated:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Robbins, 708 P.2d at 232, citing Strickland v. Washington (1985), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674. If the issue is a defendant’s guilty plea, the defendant must demonstrate that but for counsel’s deficient performance, a defendant would not have entered a guilty plea. State v. Senn (1990), 244 Mont. 56, 59, 795 P.2d 973, 975.

Mahoney asserts that his attorney did not inform him that the State must provide the defendant access to a competent psychiatrist “who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Ake v. Oklahoma (1985), 470 U.S. 68, 83, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53. Such advice is mandated only where the defendant has demonstrated to the court that his sanity at the time of the offenses committed will be a “significant factor at trial.” Ake, 470 U.S. at 83, 105 S.Ct. at 1096.

However, defendant’s counsel did consider a defense of mental impairment but concluded there was no basis upon which to pursue such a defense. A psychiatric evaluation was conducted at Warm Springs State Hospital, which revealed no evidence of any mental disease or defect. Defense counsel’s considered decision to forego a defense of mental disease or defect, therefore, was not an error at all much less an error “... so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Robbins, 708 P.2d a 232.

Neither can Mahoney demonstrate, as he claims, that his counsel failed to inform him that he would not be convicted of “attempted” homicide and sexual assault because he “abandoned his criminal efforts before consummation.” This argument is without merit. We have already discussed the “attempted” felonies, concluding that Mahoney did not voluntarily abandon his criminal efforts before consummation. Therefore, it was not error or incompetence for Mahoney’s counsel to fail to inform him that it was impossible for him to be convicted of the two felony “attempts” to which he pled guilty.

Mahoney further argues that his counsel should have sought to dismiss the increased charges brought in the amended information because they were the result of “prosecutorial vindictiveness.” We dispensed with Mahoney’s argument concerning “prosecutorial vindictiveness” in the first section of this opinion. We stated that under § 46-11-403, MCA (1987), the prosecution could amend the information to charge crimes for which there was probable cause up to five days before trial if the motion to amend was filed in accordance with the procedural requirements of the statute. Here, the State filed a proper motion to amend and therefore, Mahoney’s counsel had no reason to dispute the amended information on the ground of “prosecutorial vindictiveness.”

Moreover, Mahoney stated at his hearing to change his plea from not guilty to guilty, that he was satisfied with the services and advice given by his counsel in the matter. Additionally, he signed an Acknowledgement of Waiver of Rights, which states that “I am satisfied that my lawyer has been fair to me and has represented me properly.”

Finally, since defense counsel’s performance was not deficient, his performance could not have prejudiced the defense. In the face of the record in this case and our discussion above, Mahoney’s claims of ineffective assistance of counsel are without merit. We conclude that Mahoney cannot meet either prong of the Strickland test and, therefore, has not demonstrated that his counsel’s assistance was ineffective.

Having reviewed the record and having disposed of Mahoney’s claims and arguments, we hold that the District Court did not abuse its discretion in denying the defendant’s motion to withdraw his guilty plea.

Affirmed.

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


author: JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF JANET H. BARNARD, Petitioner and Appellant, and TIMOTHY BARNARD, Respondent and Respondent.
    No. 93-410.
    Submitted on Briefs January 20, 1994.
    Decided March 10, 1994.
    51 St. Rep. 173.
    264 Mont. 103.
    870 P.2d 91.

      For Petitioner and Appellant: Jennifer Bordy, Bozeman.
    For Respondent and Respondent: Janies H. Goetz and Richard J. Dolan, Goetz, Madden & Dunn, Bozeman.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Janet Barnard moved the District Court for the Eighteenth Judicial District in Gallatin County to modify the amount of child support provided for in its prior decree which dissolved her marriage to Timothy Barnard. The District Court denied her motion. She appeals from that order. We affirm the District Court.

Janet raises numerous issues on appeal. However, because of our resolution of the first issue, it is not necessary that they all be discussed. Therefore, we restate the dispositive issues on appeal as follows:

1. Did the District Court abuse its discretion when it concluded that the original award of child support was not unconscionable?

2. Did the District Court err when it concluded that the Montana Child Support Guidelines did not apply?

3. Did the District Court err when it refused to award attorney fees to appellant?

FACTUAL BACKGROUND

Janet and Timothy were married on July 5, 1980. Their daughter Shanon was born on June 9, 1981. The parties’ marriage was dissolved on May 27, 1987, by a decree which incorporated a custody, support, and property settlement agreement. The joint custody arrangement provided that Shanon would reside 50 percent of the time with each parent. The parties also agreed that Timothy would pay child support in the amount of $400 per month from June 1985 through June 1989; $425 per month from July 1989 through June 1993; and $475 per month from July 1993 until Shanon reached the age of 18. In addition, Timothy was to maintain major medical and hospital insurance for Shanon’s benefit and agreed to pay for all dental, medical, and hospital bills not covered by insurance. Timothy was obligated to maintain life insurance for Shanon’s benefit in the amount of $75,000, and the parties agreed to share the costs of Shanon’s extracurricular activities.

From the marital property, Timothy received the family home valued at $250,000, along with the obligation for its mortgage. Janet received jewelry, furniture from the home, and $55,000 in cash. Additionally, Janet received $1,000 from Timothy to pay her attorney fees. She received no award of maintenance.

On May 27, 1992, Janet filed a motion to modify Timothy’s child support obligation. She alleged that, from the time of the dissolution, her financial ability to provide for her daughter’s needs had decreased, while Timothy’s financial situation had greatly improved through the success of his construction company, Barnard Construction. After two days of testimony, the District Court issued its findings of fact, conclusions of law, and memorandum and order on May 21, 1993, and denied Janet’s motion for modification of child support and request for attorney’s fees.

STANDARD OF REVIEW

The standard of review for findings of fact in child support modification cases is whether the district court abused its discretion. In re Marriage of Durbin (1992), 251 Mont. 51, 55, 823 P.2d 243, 245. We review conclusions of law to determine whether the district court’s interpretation of the law was correct. In Re Marriage of Burris (1993), 258 Mont. 265, 269, 852 P.2d 616, 619. When a district court engages in conscionability determinations, the result is neither a pure finding of fact nor a pure legal conclusion. The determination is a discretionary action, and as such, is presumed to be correct and will not be overturned by this Court absent an abuse of discretion. See In re Marriage of Hamilton (1992), 254 Mont. 31, 36, 835 P.2d 702, 704-05.

ISSUE 1

Did the District Court abuse its discretion when it concluded that the original award of child support was not unconscionable?

To justify modification of the original child support award, Janet had the burden of showing changed circumstances so substantial and continuing that the terms of the original decree are now unconscionable. Section 40-4-208(2)(b), MCA.

The District Court found that “[Timothy’s] income has increased substantially since his divorce from [Janet].” Janet argued that her own financial circumstances had considerably worsened. Although her financial affidavit and guideline worksheets reflect no income, Janet offered exhibits which showed that between 1985 and 1991, her monthly expenses averaged $2,600. She admitted at trial that despite having reported losses, she was able to withdraw money for her living from her tanning salon business. Thus, the District Court found that Janet had an after-tax, disposable income of $2,400 per month ($28,800 per year), which did not include amounts received for child support. Although Janet protests that the court improperly imputed this income to her, we conclude that reasonable inferences from the evidence presented support the District Court’s finding regarding Janet’s income.

It is obvious that Timothy’s financial success constitutes a change in circumstances. However, this fact, by itself, does not render the prior child support award unconscionable. In Green v. Green (1978), 176 Mont. 532, 579 P.2d 1235, we declined to define the word “unconscionable” for purposes of modifying child support and declared that “[w]e will follow the policy of determining on a case to case basis, from the underlying facts, whether the evidence is sufficient to be unconscionable.” Green, 579 P.2d at 1238-39.

The Court heard extensive testimony with regard to the underlying facts in this case. Janet testified that if awarded an increase in child support, she would provide more clothes and a more comfortable home for Shanon, purchase a different vehicle, and obtain medical insurance for herself. She complained of a disparity between the home she was able to provide Shanon and Timothy’s home.

The District Court found that, although there is a significant difference between the sizes of Timothy’s and Janet’s homes, the apartment Shanon shares with her mother is a “comfortable and adequate household for two people.” It further found that the current amount Timothy pays Janet for child support is comparable to the amount he himself spends on Shanon while she is in his custody, and that the total amount ($818 plus housing and transportation) approximates the standard of living Shanon would have enjoyed had the marriage not been dissolved.

Our review of the record reveals that there is no dispute that Shanon is a psychologically healthy child. There is no dispute that all of Shanon’s current needs are being met under the current child support arrangement, regardless of whether she is at her mother’s home or her father’s home. On cross-examination, Janet acknowledged that Shanon did not need clothes; that her school needs were met; that she engaged in extracurricular activities; and that she had toys, musical equipment, television, and books. Janet could identify no physical, emotional, or material need which Shanon was going without.

We conclude that the District Court did not abuse its discretion when it found and concluded that the original child support award was not -unconscionable.

ISSUE 2

Did the District Court err when it concluded that the Montana Child Support Guidelines did not apply?

Because Janet filed her motion two months before the 1992 Uniform Child Support Guidelines became effective, the District Court informed the parties that the 1990 guidelines would govern, stating that it was “the Court’s policy ... to use the old guidelines in cases filed before the amended guidelines became effective.” On appeal, Janet correctly argues that in the absence of circumstances making the latest guidelines inapplicable, the District Court should have determined child support obligations according to the guidelines in effect at the time the court made its decision. In re Marriage of D.F.D. and D.G.D (1993), [261 Mont. 186], 862 P.2d 368, 379, 50 St. Rep. 1280, 1288; Paternity of W.L. (1993), 259 Mont. 187, 190, 855 P.2d 521, 523 (citing In re Marriage of Johnston (1992), 255 Mont. 421, 843 P.2d 760 (court must state reasons for finding that the amended SRS guidelines are not applicable)).

However, we conclude that because there was no modification of the original child support award, it is irrelevant which set of guidelines would have applied.

Section 40-4-204, MCA, provides in relevant part as follows:

Whenever a court issues or modifies an order concerning child support, the court shall determine the child support obligation by applying the standards in this section and the uniform child support guidelines adopted by the department of social and rehabilitation services pursuant to 40-5-209.

Because the District Court found that the original amount of child support was not unconscionable, it did not modify the child support and was not, therefore, required to refer to § 40-4-204, MCA. Only when the court has decided to modify an order, or when it first issues an order, does this statute apply. Otherwise, the new guidelines alone would serve as a basis for modification. As this Court recently held, however, the mere adoption of new guidelines is not a sufficient change of circumstances to justify modification of child support under § 40-4-208, MCA. In re Marriage of Kukes (1993), 258 Mont. 324, 852 P.2d 655.

Although the District Court erroneously discussed why the new child support guidelines should not apply, it nevertheless reached the correct decision. We will uphold a district court’s decision, if correct, regardless of the reasons given for the result. District No. 55 and High School District No. 55-H v. Musselshell County (1990), 245 Mont. 525, 527, 802 P.2d 1252, 1253.

We conclude that the District Court correctly disregarded the new child support guidelines when it arrived at its decision that the original child support award was not unconscionable.

ISSUE 3

Did the District Court err when it refused to award attorney fees to appellant?

Our standard of review of an order denying or granting a motion for attorney fees and costs is whether the district court abused its discretion. Burris, 852 P.2d at 620. When reviewing the discretion vested in the district court under § 40-4-110, MCA, this Court will not disturb a district corut’s findings on appeal if there is substantial evidence to support those findings. In re Marriage of Hall (1990), 244 Mont. 428, 436, 798 P.2d 117, 122.

Section 40-4-110, MCA, gives the district court discretion to award attorney fees and costs after it considers the financial resources of both parties. “[A]n award of attorney fees under this statute must be based on necessity, must be reasonable, and must be based on competent evidence.” In re Marriage of Zander (Mont. 1993), 864 P.2d 1225, 1233, 50 St. Rep. 1522, 1527. Furthermore, it is the person requesting attorney fees and costs who must make a showing of necessity. Durbin, 823 P.2d at 250.

After reviewing the record, we conclude that the District Court did not abuse its discretion, and therefore, affirm its decision to deny Janet’s motion for attorney fees.

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


author: JUSTICE HARRISON JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF JOSEPH MARTIN BARKER, Petitioner and Appellant, and KRISTEEN MAUD BARKER, Respondent and Respondent.
    No. 93-422.
    Submitted on Briefs December 9, 1993.
    Decided March 10, 1994.
    51 St.Rep. 176.
    264 Mont. 110.
    870 P.2d 86.

      For Petitioner and Appellant: Jerrold L. Nye, Nye & Meyer, Billings.
    For Respondent and Respondent: W. Corbin Howard, Billings.
   JUSTICE HARRISON

delivered the Opinion of the Cornt.

Appellant Joseph Martin Barker (Joseph) appeals the distribution of marital property, the maintenance award to Kristeen Maud Barker (Kristeen), and the findings of fact and conclusions of law as set forth by the Thirteenth Judicial District Court, Yellowstone County. We affirm.

Three issues are before this Court:

1. Did the District Court equitably divide the marital property?

2. Did the District Court err by awarding maintenance to Kristeen?

3. Did the District Court err by adopting, nearly verbatim, Kristeen’s proposed findings of fact and conclusions of law?

Joseph and Kristeen were married on September 2,1967. They live in Billings, Montana, and have two children, both of whom are now adults and enrolled in college. For most of the marriage, Joseph was an insurance salesman. After two years of being unemployed, he is again selling insurance. Joseph is also a reservist in the National Guard. Kristeen was a school teacher until 1982, when she quit to become a housewife. Kristeen is now working at a flower shop.

This case arises from the dissolution of the couple’s twenty-six year marriage. Following a hearing on April 22, 1993, the District Court issued its findings of fact, conclusions of law and decree on June 15, 1993. The District Court valued the parties’ marital estate (net) — the majority of which was the family home — at $53,300. It awarded $45,055, or 84 percent of the marital estate, to Kristeen. The remaining $8,545, or 16 percent of the marital estate, went to Joseph. In addition, the court awarded Kristeen maintenance of $150 per month “until she remarries, cohabits, dies, or for five years, whichever occurs first.” Joseph appeals.

I

Did the District Court equitably divide the marital property?

Joseph and Kristeen have two assets of monetary significance: their home and Joseph’s forthcoming military pension. Joseph and Kristeen purchased their home in 1974. At the time of trial, the home was worth $60,000; however, it was encumbered by an $18,000 mortgage. From 1991 through 1993, Joseph was not employed. The couple fell seriously behind on its mortgage payments on three occasions. To avoid foreclosure, Kristeen and Joseph borrowed $6,500 from relatives. Additionally, Kristeen borrowed $3,000 from First Interstate West Bank.

Kristeen has remained in the family home and has made monthly mortgage payments of $305 since the couple separated in May 1992. She wants to keep the home. In August 1992, just before the house was to be sold in a foreclosure sale, Joseph told Kristeen that she should let the bank foreclose on the house. Instead, Kristeen secured the help of a clergyman to co-sign for a $3,000 loan and saved the home from foreclosure.

Joseph and Kristeen agreed that Kristeen should keep the family home. However, at trial, Joseph requested one-third of the home’s equity, or $14,000, and suggested that Kristeen be given six months to pay him that amount. To obtain the $14,000, Joseph was willing to participate in refinancing the home. The District Court awarded Kristeen the family home, including the total equity and debt associated with the home.

According to Joseph, the District Court’s total award of equity to Kristeen is not supported by the facts or by any Montana case law dealing with the equitable division of home equity. Joseph argues that he and Kristeen are facing financial difficulties, and neither of them can pay their expenses. Joseph points to the necessity of obtaining an additional loan during the parties’ separation as evidence that Kristeen cannot make the mortgage payments. Therefore, selling the house “is the only reasonable alternative for the parties” and it would “relieve the wife of debt and make assets available to her for her expenses.”

Joseph draws an analogy between this case and In re Marriage of Martens (1981), 196 Mont. 71, 637 P.2d 523. In Martens, the wife was awarded two-thirds of the home equity and the husband one- third. In that case, we stated:

The distribution of the equity in the house was based on the wife’s acceptance of responsibility for it in the months prior to trial, her ability to continue this responsibility, and her desire to continue to do so when the husband did not express such a desire.

Martens, 637 P.2d at 526. Joseph also refers us to In re Marriage of Rogers (1987), 226 Mont. 163, 734 P.2d 677. In Rogers, this Court ordered the sale of the family home and an equal division of the proceeds. Kristeen, in turn, refers us to cases where spouses have received equitable, though unequal, property distributions. See In re Marriage of Hecht (1982), 199 Mont. 363, 649 P.2d 1257 (wife received the entire equity in the home and 81 percent of the parties’ net worth); In re Marriage of Sirucek (1986), 219 Mont. 334, 712 P.2d 769 (this Court approved an 18 percent to 82 percent split of the parties’ net worth).

In the present case, the District Court also awarded Kristeen 45 percent of Joseph’s military pension, which he will only be eligible to receive if he completes five more years of service in the Reserves. The court noted that Kristeen receives 45 percent of nothing if Joseph fails to complete his twenty-year service requirement. While Joseph does not specifically challenge the percentage award of his military pension, he does challenge the overall “vastly disproportionate” division of property considering the parties’ “equal contribution” to the marital estate.

In reviewing factual findings which divide marital property, our standard of review is “whether the district court’s findings are clearly erroneous.” In re Marriage of Danelson (1992), 253 Mont. 310, 317, 833 P.2d 215, 219 (citations omitted). We review the district court’s conclusions of law de novo and examine whether the court correctly interpreted the law. Danelson, 833 P.2d at 219-20.

Montana courts analyze the allocation of marital property under § 40-4-202(1), MCA, which provides in pertinent part:

In making apportionment, the court shall consider the duration of the marriage and prior marriage of either party; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; custodial provisions; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of 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; property acquired by gift, bequest, devise, or descent; property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent; the increased value of property acquired prior to marriage; and property acquired by a spouse after a decree of legal separation, 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; and
(c) whether or not the property division serves as an alternative to maintenance arrangements.

The district court must achieve an equitable distribution of the marital estate, not an equal distribution. In re Marriage of Shelton (1986), 219 Mont. 456, 459, 712 P.2d 782, 784. We grant the district court broad discretion to equitably apportion the marital property. Sirucek, 712 P.2d at 774.

The District Court rejected Joseph’s request for $14,000 of equity in the home, finding that: 1) Joseph presented no evidence of the feasibility of refinancing the home; 2) the parties have poor credit and it would be highly unlikely that either or both of them could afford refinancing and associated costs; 3) since the separation, the home has only been saved through Kristeen’s unilateral efforts; and 4) a decree requiring Kristeen to pay Joseph $14,000 — absent refinancing the family home, which would double the existing encumbrance — would force Kristeen from her home. The court also declined to award Joseph equity in the home because he has a “substantially greater earning capacity” than Kristeen; because Kristeen saved the home from foreclosure and if it had been up to Joseph, there would be no equity to divide; because Kristeen wishes to stay in the family home; and because Joseph would receive very little net present value on a sale of the home.

The court found that Joseph’s expenses were overstated, because he now lives with another person who is employed full-time and contributes to their joint expenses. The court considered Kristeen’s chances of returning to the teaching profession — noting her twelve-year absence from teaching and that she has an application on file with the school system — as opposed to the likelihood that she will remain employed in the flower shop. The court noted that Kristeen voluntarily quit her position as an English teacher because she and Joseph mutually agreed that she should stay home to care for the children. The court also found that Kristeen has no investments or savings.

It is apparent that the District Court considered Kristeen’s monetary and non-monetary contributions to the marriage and marital home over the twenty-six years of the marriage. The findings of fact illustrate the court’s thorough consideration of the factors set out in § 40-4-202(1), MCA. The District Court’s findings as to the division of marital property are well supported by the record and are not clearly erroneous. We hold that the District Court properly followed § 40-4-202(1), MCA, and correctly interpreted the law.

II

Did the District Court err by awarding maintenance to Kristeen?

The court awarded Kristeen $150 per month maintenance “until she remarries, cohabits, dies, or for five years, whichever occurs first.” After taxes, the total maintenance award will come to $123 per month.

A maintenance award will not be overturned unless the district court’s findings are clearly erroneous. In re Marriage of Sacry (1992), 253 Mont. 378, 381, 833 P.2d 1035, 1037 (citation omitted). Maintenance is governed by § 40-4-203, MCA. That statute provides that the court can award maintenance if it finds that the spouse seeking maintenance:

(a) lacks sufficient property to provide for his reasonable needs; and
(b) is unable to support himself through appropriate employment ...
(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering ail relevant facts including:
(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently ...
(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(c) the standard of living established during the marriage;
(d) the duration of the marriage;
(e) the age and the physical and emotional condition of the spouse seeking maintenance; and
(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

Section 40-4-203, MCA.

Joseph argues that before a court makes an award of maintenance, there must be an equitable division of marital property. See In re Marriage of Eide (1991), 250 Mont. 490, 821 P.2d 1036. He further contends that a reversal of the property division also requires a reversal of the maintenance award. See Vivian v. Vivian (1978), 178 Mont. 341, 583 P.2d 1072. Because we determined that the property division in this case was equitable, we are not required to reverse the court’s maintenance award. See Vivian, 583 P.2d at 1075 (emphasis added).

According to Joseph, maintenance is only required when the spouse seeking maintenance lacks sufficient property to provide for her reasonable needs and she is unable to support herself through appropriate employment. See § 40-4-203, MCA. Joseph suggests that because Kristeen is a certified teacher, “there is no reason to doubt that she will eventually find a position.” Joseph further challenges the court’s finding that he has the ability to pay maintenance. Specifically, he contests the District Court’s determination of his income.

Joseph contends that Kristeen created her financial situation by refusing to sell the house, an encumbrance which he suggests is not a reasonable need. See In re Marriage of Garner (1989), 239 Mont. 485, 781 P.2d 1125. In Garner, this Court held that:

the trial court did not abuse its discretion in failing to order maintenance payments which are not necessitated by Margaret’s “reasonable” needs but rather through her voluntary decision to choose a piece of property which consumed income.

Garner, 781 P.2d at 1128. However, as Kristeen correctly asserts, Garner has no relevance here. Garner dealt with a wife who held recreational property at Flathead Lake. She was a law student in California with a promising employment future. In fact, as a first year law student, she made at one point $800 per week working for a law firm. In addition, she also received nearly $100,000 in cash as part of her property award.

In the case before us, we are dealing with a woman of modest means. While Kristeen is a certified teacher, she is currently employed as a salesperson for a Billings florist. After taxes, her net monthly income is $859. Her mortgage payment is $305 per month.

The District Court determined that Kristeen’s listed monthly expenses of $1,682 are reasonable and necessary “especially considering the allocation of over 80 percent of the parties’ debt to her.” Although Kristeen’s teaching credentials are on file with the school district and she “constantly’ inquires as to whether any teaching positions are available, the court found that Kristeen has “no prospect of [her] income changing substantially.”

The court found that Kristeen is “unable to fully support herself through her present employment.” The District Court further considered: Kristeen’s financial resources; the property — including equity and debt — apportioned to Kristeen; Joseph’s ability to meet his own needs; Joseph’s current employment/net monthly income of $1,176, based on his commissions after two months of work and his monthly National Guard stipend and annual training pay; that Joseph lives with a person who is employed full-time and contributes to their joint expenses; and that Joseph and the person with whom he lives are jointly contributing to the support of her adult children.

The record clearly supports the District Court’s maintenance award of $150 per month, for a period not to exceed five years, to Kristeen. The court fully considered the factors set out in § 40-4-203, MCA, when awarding maintenance to Kristeen. We hold that the District Court’s findings are not clearly erroneous.

III

Did the District Court err by adopting, nearly verbatim, Kristeen’s proposed findings of fact and conclusions of law?

Joseph contends that, with two minor exceptions — reduction of maintenance from $200 to $150 per month and denial of attorney’s fees to Kristeen — the District Court erred by adopting Kristeen’s findings of fact and conclusions of law verbatim. In support of his contention, Joseph cites In re Marriage of Kukes (1993), 258 Mont. 324, 852 P.2d 655. According to Joseph, Kukes stands for the following proposition:

[WJholesale acceptance by the District Court of one party’s findings of fact and conclusions of law is error as it indicates a lack of proper consideration of the facts and failure to use independent judgment.

Joseph is mistaken. In Kukes, we stated that

[ejrror occurs when the court accepts one party’s proposed findings of fact without proper consideration of the facts and where there is lack of independent judgment by the court.

Kukes, 852 P.2d at 657 (citations omitted). First, the District Court did not accept Kristeen’s findings of fact “wholesale.” In addition to independently determining the maintenance award and denying Kristeen attorney’s fees, the court also determined that Joseph would receive his grandfather’s desk and a branding iron collection purchased by the parties, and that Kristeen would keep a ring originally owned by Joseph’s grandmother.

Second, our holdings under Issues I and II establish that the District Court properly considered the facts before it, correctly applied the law to the facts, and correctly interpreted the law. Unquestionably, the District Court exercised independent judgment when making its findings of fact and conclusions of law.

Affirmed.

JUSTICES GRAY, NELSON and WEBER concur.

JUSTICE TRIEWEILER

specially concurring.

I concur with the majority’s decision to affirm the District Court for the reason that I conclude that the District Court’s findings were not clearly erroneous and its distribution of marital property was not an abuse of discretion. However, I do not subscribe to all of the reasons set forth in the majority opinion.

Specifically, I am unimpressed by the fact that Joseph lives with another woman to whom he pays rent, or that he occasionally provides financial assistance to her family. I fail to see how any of those facts are relevant to whether or not the marital estate was equitably distributed.

I conclude that it was equitable for Kristeen to receive the marital home, including its equity, because it was due solely to her efforts that the equity in the home was preserved by avoiding foreclosure. I consider this a valid consideration pursuant to § 40-4-202(1), MCA, which allows the district court to consider a spouse’s contribution to the estate when distributing the estate.

For this reason alone, and because there is no serious disagreement with the District Court’s distribution of the pension accumulated by Joseph during the couple’s marriage, I would affirm the District Court’s distribution of the marital estate.

Based on my conclusion that the estate was properly distributed and the additional evidence that following distribution Kristeen’s income was still less than her living expenses, I also agree that there was sufficient evidence to support the District Court’s conclusion that Kristeen was entitled to maintenance pursuant to § 40-4-203, MCA. I do not agree with all of the conditions placed on the continuation of that maintenance. However, those conditions have not been appealed.

Therefore, I would affirm the judgment of the District Court.