author: JUSTICE LEAPHART JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JASON HARDAWAY, Defendant and Appellant.
    Nos. 97-163, 97-289.
    Submitted on Briefs January 15, 1998.
    Decided September 9, 1998.
    1998 MT 224.
    55 St.Rep. 936.
    290 Mont. 516.
    966 P.2d 125.

      For Appellant: Jack E. Sands, Attorney at Law, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Ass’t Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Dale Mrkich, Ass’t Yellowstone County Attorney, Billings.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Jason Hardaway (Hardaway) appeals from the decision of the Thirteenth Judicial District Court, Yellowstone County, denying his motion to dismiss for lack of speedy trial, denying his motion for mistrial as a result of prejudicial comments made during jury voir dire and, in a separate matter, denying his motion for defense costs. We reverse and remand this matter to the District Court.

Factual and Procedural Background

¶2 Hardaway was arrested on February 22,1995 following a high speed car chase that led to a subsequent foot chase through a field. When the officer caught up with Hardaway he was wearing a ladies slip, a black shirt and some jewelry. He was carrying a pair of jeans. The officer arrested Hardaway and transported him to the Yellowstone County Detention Facility. During an inventory search of Hardaway and the items in his possession, the detention officer found two small bindles containing a white powdery substance in the right front pocket of the jeans that Hardaway was carrying. The officer also found a bindle and a plastic baggie containing a white powdery substance in the right watch pocket of the jeans. The white powdery substances tested positive for methamphetamine. Although Hardaway later denied ownership of the jeans, Hardaway had the jeans in his possession when he was arrested and claimed the jeans from inventory to wear home when he was released from custody.

¶3 On February 27, 1995, the State of Montana (State) charged Hardaway with criminal possession of dangerous drugs. Hardaway appeared at the arraignment with appointed counsel and pled not guilty to the charge. On March 23,1995, the District Court released Hardaway on his own recognizance. Trial on Hardaway’s drug charge was set to begin on June 27,1995. For reasons unknown, but believed to have been caused by the court’s backlog, the case did not proceed to trial in June, but was reset for November 6, 1995.

¶4 On November 6,1995, the court, the prosecutor, defense counsel and the jury assembled to proceed with the trial. Defense counsel, however, informed the court that he could not find Hardaway. The court issued a bench warrant. Hardaway was arrested on November 15,1995 in Lake County on charges of burglary and theft. He was incarcerated and served with the outstanding Yellowstone County bench warrant. Yellowstone County charged Hardaway with bail jumping as a result of his failure to appear for the November 6,1995 trial.

¶5 Hardaway retained new counsel on December 19,1995. On May 22, 1996, Hardaway entered an Alford plea and was sentenced on the Lake County charges of burglary and theft. Thereafter, he was transported back to Yellowstone County to face the bail jumping and drug possession charges. The District Court set the trial on Hardaway’s drug possession charge for November 26, 1996 (643 days after his arrest).

¶6 On October 9,1996, Hardaway filed a motion to dismiss the drug possession charge based on lack of speedy trial. The court held a hearing and denied Hardaway’s motion.

¶7 Hardaway’s trial for bail jumping began on October 21, 1996. Hardaway called two out-of-town witnesses, one appeared at trial, the other appeared via telephonic deposition. Following the presentation of the State’s case, the court granted Hardaway’s motion for directed verdict of acquittal. Defense counsel requested reimbursement for costs incurred in obtaining the out-of-town witnesses’ testimony pursuant to § 46-15-116, MCA. The District Court denied the request for costs finding that defense counsel was retained, not court appointed and thus not eligible to receive reimbursement for the costs. Hardaway appeals from the District Court’s decision denying his request for reimbursement (Cause Number 97-289).

¶8 On November 26, 1996, the jury was assembled for trial on Hardaway’s drug possession charge. When asked if any of the prospective jurors knew the defendant, three members of the prospective panel revealed that they had been in court “a month ago for the defendant earlier for something else.” One of those three prospective jurors commented that “[Hardaway] shouldn’t have been doing what he was doing to be here.” This prospective juror was removed for cause. The second prospective juror was peremptorily removed, and the third juror sat on the jury that decided Hardaway’s drug possession case. In addition, another prospective juror stated during voir dire that she had seen an account of Hardaway’s arrest on television, that she believed he was guilty, and that she would find him guilty regardless of the evidence presented at trial. This fourth juror was also removed for cause. As a result of these damaging comments made in the presence of the entire jury panel, defense counsel requested that the court inform the jury during voir dire that Hardaway had been acquitted of the bail jumping charge. The District Court denied Hardaway’s specific request, but agreed to instruct the jurors that they were not to consider the prior criminal charge in any way. Defense counsel moved for a mistrial and the court denied the motion. The trial proceeded and the jury found Hardaway guilty of the drug possession charge. Following the jury verdict, Hardaway moved for a new trial due to the comments made during voir dire, and the court denied the motion. Hardaway appeals from the District Court’s denial of his motion to dismiss for lack of speedy trial and denial of his motion for mistrial (Cause Number 97-163). This Court consolidated Hardaway’s two appeals. Hardaway presents three issues on appeal:

¶9 1) Did the District Court abuse its discretion in determining that Hardaway’s speedy trial rights were not violated?

¶10 2) Did the District Court abuse its discretion in denying Hardaway’s motion for a mistrial?

¶11 3) Did the District Court err in denying Hardaway’s request for reimbursement of costs incurred in his defense of the bail jumping charge?

I

¶12 1) Did the District Court abuse its discretion in determining that Hardaway’s speedy trial rights were not violated?

¶13 [1] A criminal defendant is guaranteed a speedy trial by the Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution. In determining whether a defendant has been denied his right to a speedy trial, this Court recently established a four-part balancing test in City of Billings v. Bruce, 1998 MT 186, [290 Mont. 148], 965 P.2d 866, which loosely follows the United States Supreme Court test set forth in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. The District Court applied the four-part Barker test to the facts of this case and determined that Hardaway’s right to a speedy trial was not violated. We determine, however, that the District Court and the parties did not, at the time Hardaway moved for a dismissal based on lack of speedy trial, have the benefit of the Bruce decision. Therefore, we remand this issue to the District Court to hold a hearing regarding Hardaway’s motion to dismiss for lack of speedy trial applying the test set forth in Bruce.

¶ 14 Under this Court’s recently adopted speedy trial test, the District Court should analyze four factors: 1) length of delay, 2) reason for delay, 3) assertion of the right by defendant, and 4) prejudice to the defense. Bruce, ¶¶55-58. In remanding this issue to the District Court, we correct the court’s allocation of time under the second factor and elaborate on the manner in which the Bruce decision is to be applied.

¶ 15 The second factor articulated in Bruce requires the court to consider the reasons for the delay. In so considering, the court determines which party is responsible for specific periods of time, then respectively allocates the total time delay between the parties.

¶16 The District Court determined that the casé would have been tried on November 6, 1995, but for Hardaway’s failure to appear at trial and thus, attributed the time between February 22 (Hardaway’s arrest) and November 6 (the second trial date) to Hardaway. Hardaway contends that in attributing this time to him, the District Court has effectively concluded that Hardaway waived his right to a speedy trial by failing to appear on November 6th. Hardaway further argues that he did not appear for trial on November 6th because his attorney did not inform him of the trial date. Moreover, Hardaway argues that the fact that he was acquitted of the bail jumping charge is further evidence that he should not be held accountable for the missed trial date and subsequently held responsible for the delay between his arrest and the November 6th trial date.

¶17 We determine that the District Court erred in attributing the time between February 22 and November 6 (257 days) to Hardaway. Had the trial been held on June 27th, as originally scheduled, Hardaway’s right to speedy trial would have been satisfied. It is not apparent from the record why the June 27th trial date was vacated in favor of the November 6th setting. The District Court ventured that the resetting of trial from June 27th to November 6th was likely the result of backlog. Therefore, since the time delay between February 22nd to November 6th was not attributable to Hardaway, we allocate that time to the State as institutional delay.

¶18 The District Court allocated the 198 days between November 6, 1995 and May 22, 1996 (while Hardaway was held on Lake County charges) to Hardaway due to his failure to appear at the November 6th trial and due to the inability of Yellowstone County to obtain jurisdiction over him while he was held in Lake County. Hardaway argues that the State acted in bad faith during this period of time. He argues first, that as a result of the bail jumping charge in Yellowstone County, he could not post bond in Lake County to appear in Yellowstone County. Furthermore, when he did appear in Yellowstone County, he was tried on the bail jumping charge before the drug possession charge even though the drug possession charge was eighteen months older than the bail jumping charge. We agree with the District Court that this period of delay was the result of Hardaway’s failure to appear at trial (even if he was not informed of the date) and his subsequent arrest in Lake County. We reject Hardaway’s claim of bad faith and therefore allocate this period of delay to Hardaway.

¶19 Finally, the District Court allocated the remaining 188 days from May 22 through Hardaway’s trial on November 26 to the State. The District Court, allocating only this 188 days to the State, determined that since the 188-day delay was not itself violative of Hardaway’s speedy trial right and was not intentional or deliberate, the State satisfactorily explained the reasons for the delay. As set forth above, we disagree with the court’s allocation and, instead, allocate a total of 445 days to the State.

¶20 Pursuant to this Court’s recent amendments to its speedy trial analysis, as set forth in Bruce, ¶56, if the court determines that the State is responsible for 275 or more days of the total delay, the State has the initial burden of demonstrating that the defendant has not been prejudiced by the delay. The 445-day delay attributed to the State exceeds the 275-day threshold and raises a presumption that Hardaway was prejudiced by the delay. Thus, in accordance with Bruce, the State has the initial burden of demonstrating a lack of prejudice.

¶21 We explained in Bruce that “[t]he State’s proof should take into consideration, but need not include, all three traditional bases for prejudice: (a) pretrial incarceration, (b) anxiety and all of its attendant considerations, and (c) impairment of the defense. ... Once the State has demonstrated lack of prejudice based on one or more of these considerations, the burden will then shift to the defendant to demonstrate prejudice and the district court will have to weigh the evidence of each party.” Bruce, ¶56.

¶22 In stating that the State may demonstrate lack of prejudice on one or more of the traditional bases of prejudice, we intended that the State offer proof on as many bases as possible and that the District Court weigh that evidence to determine whether the burden should shift to the defendant to show prejudice. We clarify that if the State can only show lack of prejudice on one of the three traditional bases of prejudice, it must, at a minimum, address the question of whether there has been impairment of the defense. That is, the State must offer proof that the defense has not been impaired by the delay in bringing the defendant to trial.

¶23 Ifthe State satisfies its burden of demonstrating that the defendant has not been prejudiced by the delay, the burden will shift to the defendant to show he/she has been prejudiced. With the above correction and this clarification of the Bruce decision, we remand this issue to the District Court to hold a hearing on Hardaway’s motion to dismiss for lack of speedy trial applying the test set forth in Bruce.

II

¶24 2) Did the District Court abuse its discretion in denying Hardaway’s motion for a mistrial?

¶25 Hardaway moved for a mistrial during jury voir dire, and moved for a new trial after the trial. The District Court denied both of Hardaway’s motions concluding that Hardaway received a fair and impartial trial. We recently clarified in State v. Partin (1997), [287 Mont. 12], 951 P.2d 1002, that the district court, when deciding whether to grant a mistrial, should determine whether the conduct in question denies the defendant a fair and impartial trial. We further clarified that this Court will review a district court’s ruling on a motion for a mistrial to determine whether the court abused its discretion. Partin, 951 P.2d at 1005.

¶26 In support of his motion for mistrial, Hardaway asserted that the jury panel was poisoned by comments made by four veniremen during voir dire. Three of the prospective jurors, S.E., D.V., and S.H., stated that they had been on Hardaway’s jury panel one month earlier for his trial on bail jumping charges and that they recognized Hardaway and his attorney from that experience. S.E. expressed that “[Hardaway] shouldn’t have been doing what he was doing to be here ...” and that she believed she would be a potentially unfair juror in the drug possession case. S.E. was removed for cause. D.V. was peremptorily challenged, and S.H. sat on the jury that decided Hardaway’s drug possession case. In addition, a fourth juror, J.D., stated that she had seen an account of Hardaway’s arrest on television, that she believed he was guilty and that she would find him guilty regardless of the evidence presented at trial. J.D. also expressed that “[she] believe[d] that we’ve got too many people being killed for drugs. If we put them away from drugs, we wouldn’t have to spend taxpayer’s money on this [trial],... [We] should just put them in jail.” Shortly before being removed for cause, J.D. further expressed her opinion that “[Hardaway’s] guilty or he wouldn’t be here.”

¶2 7 Asa result of these damaging statements made in open court in the presence of the jury panel, defense counsel requested that the District Court inform the potential jurors that Hardaway had been acquitted of the bail jumping charges. The court refused to so instruct the jury, but agreed to instruct the veniremen that they were not to consider other criminal charges in any way. The District Court informed defense counsel that it was “this instruction or nothing.” Defense counsel indicated that he preferred the instruction to nothing, but immediately moved for a mistrial. The District Court denied the motion. The case proceeded and the jury found Hardaway guilty of the charges. Hardaway moved for a new trial at the conclusion of the trial and the court denied the motion.

¶28 In State v. McMahon (1995), 271 Mont. 75, 894 P.2d 313, this Court analyzed several cases wherein district courts had denied motions for mistrial based on juror prejudice. We recognized “a trend that improper comments by prosecutors or prospective jurors about the defendant or about the evidence, are not grounds for mistrial if the judge instructs the jury to disregard the questionable comment and if the court is satisfied that the juror can lay aside a fixed opinion and render a verdict solely on the evidence presented.” McMahon, 271 Mont. at 79, 894 P.2d at 316. In McMahon, we held that when comments of members of the prospective jury are so prejudicial that they have a “natural tendency” to infect the entire proceedings with an unfairness, such prejudice can only be corrected by declaring a mistrial and “starting anew the legal contest.”McMahon, 271 Mont. at 81, 894 P.2d at 317. However, we cautioned that our holding in McMahon should be interpreted narrowly and reserved only for the most egregious and prejudicial prospective juror comments. McMahon, 271 Mont. at 81, 894 P.2d at 317. We determine that this is such a case.

¶29 Hardaway argues that, “the jury was left with the firm impression that their Thanksgiving plans had to be interrupted because they had to hear the case of a defendant who had just been convicted a month previously and who was identified as obviously guilty by one prospective juror.” In addition, Hardaway argues that the cautionary instruction given by the District Court, that the jurors should not consider other criminal charges in any way, did not defuse the incriminatory statements made by the prospective jurors. The State asserts that Hardaway has not shown that the jury was prejudiced by the remarks, nor has he established that the District Court’s cautionary instruction did not cure any supposed harm.

¶30 We apply the general principle, as we did in McMahon, that “’any improper influence which has the natural tendency to prejudice the verdict is grounds for a mistrial.’” McMahon, 271 Mont. at 80, 894 P.2d at 317 (quoting Putro v. Baker (1966), 147 Mont. 139, 148, 410 P.2d 717, 722). We conclude that the comments made by the prospective jurors in the presence of the entire panel were so prejudicial that they had a “natural tendency” to infect the proceedings with an unfairness that could only have been corrected by an instruction from the District Court that Hardaway had been acquitted of the bail jumping charge, thus preserving Hardaway’s presumption of innocence, or by declaring a mistrial and starting anew the legal contest. In the absence of such corrective action by the District Court, Hardaway was denied a fair and impartial trial. We hold that the District Court abused its discretion in denying Hardaway’s motion for a mistrial or, in the alternative, by failing to instruct the jury that Hardaway had been acquitted on the bail jumping charge. Accordingly, in the event the District Court determines that Hardaway was not denied a speedy trial, we reverse and remand this matter to the District Court for a new trial.

Ill

¶31 3) Did the District Court err in denying Hardaway’s request for reimbursement of costs incurred in his defense of the bail jumping charge?

¶32 Following Hardaway’s acquittal of the bail jumping charge, defense counsel moved for reimbursement of costs incurred in procuring testimony of two out-of-town witnesses. The first witness, Roberta Tamcke, flew from Oregon to Montana the day before trial and appeared as a witness at the trial. The second witness, Christopher J. Riccardi, was unavailable for trial and appeared via telephonic deposition. Defense counsel asserted that, pursuant to § 46-15-116, MCA, he was entitled to reimbursement of costs incurred in procuring this testimony. In support of his claim on appeal, defense counsel represents that he was acting pro bono on behalf of Hardaway.

¶33 The District Court determined that since defense counsel was retained, not court appointed, he was not entitled to reimbursement. Hardaway appeals from the District Court’s denial of costs. The State moved this Court to dismiss Hardaway’s claim for costs asserting that this issue does not effect substantial rights of the defendant and thus is not proper on appeal. Hardaway counters this argument by asserting that this issue is linked to his constitutional right to counsel. In support, Hardaway asserts that his court appointed counsel was providing ineffective assistance. Hardaway contends that, although his current counsel was willing to serve pro bono, his counsel should not be burdened with the witness costs incurred in his defense. We deny the State’s motion to dismiss and consider Hardaway’s appeal on the issue of reimbursement of costs.

¶34 The District Court, in denying reimbursement of witness costs, reasoned that § 46-15-116, MCA, “must necessarily be read in conjunction with § 3-5-901, M.C.A.” and that, the “statute anticipates that the witness fees and expenses will be paid for witnesses called on behalf of the prosecution but not on the behalf of privately funded retained counsel where a defendant has not as an indigent requested court-appointed counsel.” The District Court also noted that there was no request for attendance or subpoena of Ms. Tamcke pursuant to § 46-15-113, MCA (compelling attendance of out-of-state witness), and that the request for reimbursement should be denied for that reason. ¶35 The clear language of § 46-15-116, MCA, states that “[w]hen a person attends before a judge, grand jury, or court as a witness in a criminal case upon a subpoena, the witness shall receive the witness fee prescribed in Title 26, chapter 2, part 5.... The court may determine the reasonable and necessary expenses of subpoenaed witnesses and order the clerk of the court to pay the expenses from the appropriate city or county treasury.” Section 3-5-901, MCA, states that “[t]o the extent the revenue is available ... the state shall fund... the following district court expenses in criminal cases only... witness fees and necessary expenses....” We disagree with the District Court’s interpretation that the statutes apply only to court appointed counsel or indigent defendants since the statutes impose no such requirement. The only prerequisites that appear in the statutes are that the court has the revenue available and that the witness be subpoenaed. ¶36 The record indicates that Ms. Tamcke voluntarily appeared for trial on October 22,1996 and acknowledged service of the subpoena shortly before testifying on the same day. Having been served with a subpoena prior to testifying, Ms. Tamcke qualifies for fees and costs under § 46-15-116, MCA. Moreover, we determine that the procedural requirements of § 46-15-113, MCA, for compelling the attendance of an out-of-state witness do not apply to an out-of-state witness who voluntarily appears and acknowledges service of a subpoena.

¶37 As to deposition costs, Hardaway argues that the statutes allowing costs do not distinguish between court appointed and retained attorneys, but rather rely on the indigency status of the defendant. Section 46-15-202(7), MCA, provides that “whenever a deposition is taken at the instance of a defendant who is unable to bear the expense of taking a deposition, the court shall direct that the expense ... be paid by the city for a municipal court proceeding or by the state for a district court proceeding.” Christopher Riccardi, also an out-of-town witness, was not available to appear at Hardaway’s trial. As a result, defense counsel conducted a telephonic deposition the night before trial and moved the court the next day for its admission into evidence. The court granted the motion allowing the testimony, but subsequently denied counsel’s request for reimbursement of costs associated with procuring the testimony. While § 46-15-202(7), MCA, does not specifically address the cost of a telephonic deposition, we note that, in most instances, a telephonic deposition is more cost effective than incurring travel expenses associated with conducting a deposition in person. We hold that the costs of a telephonic deposition are within the scope of “a deposition” under § 46-15-202(7), MCA.

¶38 The record reveals that in Cause Number 97-163, Hardaway was declared indigent and an attorney was appointed on his behalf when he was arrested in 1995. However, Hardaway obtained new counsel in December 1995, claiming his court appointed attorney was rendering ineffective assistance. In addition, the District Court, based on Hardaway’s showing of indigency, allowed the preparation of transcripts for purposes of appeal without cost to Hardaway, thereby supporting Hardaway’s claim that his indigency status had continued throughout the time that counsel requested reimbursement. We agree with Hardaway that a defendant’s entitlement to reimbursement for deposition costs under § 46-15-202(7), MCA, does not hinge on whether the defendant’s counsel is court appointed or retained; rather, the determining factor is whether the defendant is indigent, and thus unable to bear the expense. We remand this issue to the District Court for an award of costs consistent with this opinion. ¶39 In conclusion, we remand this matter to the District Court for the following purposes: First, the District Court shall conduct a hearing on Hardaway’s motion to dismiss for lack of speedy trial. In conducting such hearing, the District Court shall adhere to the correetions and clarifications set forth in this opinion. In addition, the District Court shall apply the speedy trial test as recently set forth by this Court in City of Billings v. Bruce, 1998 MT 186, [290 Mont. 148], 965 P.2d 866. Second, if the court determines Hardaway was denied a speedy trial, the court shall dismiss the drug possession charge against Hardaway. In the alternative, if the court determines that Hardaway’s constitutional right to a speedy trial was not denied, the court shall promptly set this matter for a retrial based on this Court’s holding on Issue II. Finally, the District Court shall hold a hearing to determine the amount of Hardaway’s costs in accordance with this Court’s resolution of Issue III. Reversed and remanded.

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

JUSTICE TRIEWEILER

concurring in part and dissenting in part.

¶40 I concur with parts II and III of the majority opinion related to Jason Hardaway’s motion for mistrial and reimbursement for costs incurred in his defense against the bail jumping charge. I also concur with the majority’s decision to remand the speedy trial issue to the District Court for further consideration based on our decision in City of Billings v. Bruce, 1998 MT 186, [290 Mont. 148], 965 P.2d 866. However, I do not agree with all that is said in the majority’s speedy trial analysis.

¶41 Specifically, I disagree with the majority’s calculation of the number of days attributable to the State. The majority concludes, and I agree, that the 257 days of delay from the date on which Hardaway was charged until his November 6,1995, trial date is attributed to the State. The majority also concludes, and I agree, that the 188 days after Hardaway’s return to Yellowstone County until his final trial date is attributed to the State. However, the majority has arbitrarily concluded, without explanation, that the time from November 6, 1995 (the date of the trial at which Hardaway did not appear), until May 22, 1996 (the date on which Hardaway was returned to Billings following a guilty plea to other charges in Lake County), is attributed to Hardaway. The majority makes this conclusion in spite of the fact that Hardaway denied knowledge of the November 6 trial date; a jury apparently agreed that he had no knowledge of the November 6 trial date; and, whether or not he had knowledge of that trial date, he was arrested in Lake County on November 15,1995, served with the outstanding Yellowstone County bench warrant, and could have been returned to Yellowstone County for trial at any time thereafter. There is no explanation of why the time from November 15,1995, to May 22, 1996, is any less attributable to the State as institutional delay than the time from May 22,1996, to November 26,1996.1 conclude that it is attributable to the State and, therefore, that the total delay which should be attributed to the State in this case is 633 days, rather than the 445 days attributed by the majority. Therefore, even though the delay was institutional, rather than intentional, I believe that a delay of that length should weigh heavily against the State. However, whether the delay is sufficient to require dismissal of the charges against Hardaway will depend on further analysis consistent with the Bruce decision.

¶42 For these reasons, I concur with the result of the majority opinion, but not with all that is said therein.

JUSTICE HUNT joins in the foregoing concurring and dissenting opinion.


source: Caselaw Access Project

license: Public Domain

text:
    IN RE THE MARRIAGE OF LINDA BEADLE, Petitioner, Respondent and Cross-Appellant, and ANDY GEORGE BEADLE, Respondent and Appellant.
    No. 97-409.
    Submitted on Briefs May 28, 1998.
    Decided September 9, 1998.
    1998 MT 225.
    55 St.Rep. 943.
    291 Mont. 1.
    968 P.2d 698.

      For Appellant: Matthew Knierim; Christoffersen & Knierim, Glasgow.
    For Respondent: Monte J. Boettger, Attorney at Law, Lewistown.
    For Amicus Curiae Bernadene Beadle: Sol Lovas, Attorney at Law, Billings.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶ 1 Appellant Andy George Beadle (Andy) appeals from the findings of fact, conclusions of law, and decree of dissolution entered by the Seventeenth Judicial District Court, Phillips County, awarding Respondent Linda Beadle (Linda) $1,000 per month in maintenance. Linda cross-appeals from the District Court’s order excluding Andy’s trust interest from the marital estate. We affirm.

¶2 We review the following issues:

¶3 1. Did the District Court err in considering $1,000 per month income earned by Andy as trustee of his parents’ trusts?

¶4 2. Did the District Court abuse its discretion in awarding Linda maintenance of $1,000 per month?

¶5 3. Did the District Court err in excluding Andy’s trust interest from the marital estate?

Factual and Procedural Background

¶6 Linda and Andy were married in 1965 and separated in April of 1995. The couple has two adult children and one minor child, Kayla, currently fifteen years old. Throughout their marriage, Linda and Andy resided in Saco, Montana, where they owned a home and business, Jake’s Bar.

¶7 In 1989, Andy’s parents, John G. Beadle (John) and Bernadene H. Beadle (Bernadene), established identical, revocable living trusts as part of their estate plan. John passed away in 1990. Pursuant to the couple’s estate plan, the first $600,000 of John’s estate was allocated to a tax-sheltered unified credit trust. Bernadene was the sole lifetime beneficiary of the trust and had the power to appoint by will the remainder of the trust among the couple’s descendants. The trust provided that if Bernadene did not exercise the power to appoint, the trust would be distributed among each of John and Bernadene’s five children, including Andy, upon her death. Andy and his brother, G. Brien Beadle, were appointed co-trustees of the John G. Beadle Revocable Trust. From 1990 to 1996, Andy and Brien each received $1,000 per month for their services as co-trustees.

¶8 In August of 1995, Linda petitioned to dissolve her marriage to Andy. Subsequently, she moved the District Court to compel discovery regarding the assets contained in the John G. Beadle Revocable Trust. Following an evidentiary hearing, the District Court held that the trust is a “vested remainder, subject to divesture” acquired by Andy during his marriage and, thus, part of the marital estate. The court granted Linda’s motion to compel.

¶9 Linda subpoenaed Bernadene to provide information about her estate plan and the value of the John G. Beadle Revocable Trust. Bernadene moved to quash the subpoena. Bernadene presented the District Court with proof that she had executed a codicil to her will exercising her power of appointment to exclude Andy from receiving any trust proceeds. In an order filed December 4, 1996, the District Court quashed the subpoena and overruled its prior order compelling discovery of the trust assets. The court held that “by reason of the divesture taking place, Andy no longer has any vested remainder interest in the John G. Beadle Revocable Trust. Unless the remainder interest is vested, it cannot be included in the marital estate. [Citation omitted.]” Despite this holding, Linda again subpoenaed Bernadene to testify concerning her assets and estate plans. The District Court refused to quash the subpoena, holding that Linda should be able to question Bernadene about whether she intended to disinherit Andy permanently.

¶10 The matter went to trial on February 20,1997. Linda was 49 years old at the time of trial and had not received her high school degree or GED. During the marriage she was the primary caretaker of the household and children in addition to working approximately 40 hours per week at Jake’s Bar, beginning sometime in the late 1970s. Since the couple’s separation, Linda has worked about 70-80 hours per week at Jake’s Bar, earning an annual gross income of about $16,000. At the time of trial, she was receiving $700 per month from Andy in temporary child support and maintenance. She testified that her monthly expenses were about $3,000 per month.

¶11 Andy testified that he worked for the Williston Basin Interstate Pipeline Company as a compressor operator grossing approximately $28,000 per year. He had accumulated a 401k pension plan worth approximately $25,000. Bernadene testified at trial that she had exercised her power of appointment to disinherit Andy and that she desired him to relinquish his duties as trustee. Even though at the time of trial in February 1997 Andy testified that he had not received the $1,000 per month fee for performing his trustee duties in 1997, under the terms of the trust, Andy received the use of a 1994 truck and unlimited gasoline. By sworn affidavit Andy reported his gross income in 1996 was $49,616. He estimated his monthly expenses to be about $1,500 per month.

¶12 Following trial, the District Court entered its findings of fact, conclusions of law, and decree of dissolution. The court found that the couple’s home and Jake’s Bar represent the bulk of the marital estate and awarded both to Linda. The court awarded Andy his pension fund and various personal property. The District Court found that Linda nets approximately $1,100 per month. The court found that Andy’s net income was $3,600 per month including $1,000 per month for trustee fees. The court determined that Andy had “sufficient income to meet his needs and provide for the needs of his Wife” and awarded Linda $1,000 per month maintenance for four years.

¶13 On March 5,1997, Andy filed a motion to alter or amend judgment, arguing that the court erred in finding that his net income was $3,600 per month. He also argued that because he would likely be forced out of his position as co-trustee, the court should not consider the $1,000 per month trustee fee. Linda opposed the motion, stating that the evidence at trial supported the judgment. Andy then filed a reply, stating that he had resigned from the trust, attaching a document entitled “Resignation As Trustee.” Linda filed a motion to strike, arguing that the court could not consider new evidence in considering a motion to alter or amend under Rules 59(g) and 60(b), M.R.Civ.P.

¶14 The District Court granted Linda’s motion to strike and proceeded to rule on Andy’s motion without considering the “Resignation As Trustee” document. The court denied Andy’s motion and upheld its earlier findings and conclusions noting that because Andy had failed to provide the court with his most recent tax returns, it could only estimate his income based on the information it had before it.

¶15 Andy appeals from the District Court’s findings and conclusions, arguing that the court erred in awarding Linda $1,000 maintenance per month. He also argues that the court erred in imputing to him $1,000 per month trustee income because he has resigned as trustee. Linda cross-appeals, arguing that the District Court erred in not including Andy’s interest in the John G. Beadle Revocable Trust as part of the marital estate. In April 1998, during the pendency of this appeal, Bernadene passed away having exercised her power of appointment to exclude Andy from receiving any share of the trust corpus.

Discussion

¶16 1. Did the District Court err in considering $1,000 per month income earned by Andy as trustee of his parents’ trusts?

¶17 Andy argues that the District Court erred in considering the $1,000 per month income he received as trustee because he was no longer receiving the trustee fee and had not throughout the preceding year. We review a district court’s findings of fact to determine whether they are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906.

¶18 The District Court found that Andy’s “annual salary and co-trustee fee from the trusts is $12,000. Even though Husband did not get this fee in January, 1997, the trusts continue to provide him for his personal use with a 1994 4-wheel drive pickup and fuel, oil, maintenance and licensing for the same.... [H]e remains co-trustee of his deceased father’s trust and should be receiving the fee and salary therefrom.”

¶19 Sometime after the District Court entered its findings of fact, Andy resigned his position as trustee, apparently under pressure from his family. However, at trial, Andy testified as follows:

Q [by counsel for Andy]: Now with regard to the trust income, you have been receiving a thousand dollars a month from the trust as the trustees fee; is that correct?
A [by Andy]: That’s correct.
Q: Are you still receiving this money?
A: I haven’t received it this year at all, no.
Q: What is your family’s attitude towards your continuation as the trustee of the trust?
A: Well I had a discussion last night, and they want me to resign from the trust.

Although he eventually resigned, as of the date of trial, Andy was still acting as a co-trustee of the John G. Beadle Revocable Trust. Therefore, regardless of whether he was actually receiving it, Andy was entitled to $1,000 per month in compensation.

¶20 We hold that the District Court did not abuse its discretion in finding that Andy earned $1,000 per month in income as trustee based on the evidence presented at trial. Further, in considering Andy’s motion to alter or amend the judgment under Rules 59(g) and 60(b), M.R.Civ.R, the District Court was not required to consider the “Resignation As Trustee” document that Andy attached to his reply brief. At the time of trial, Andy was serving as co-trustee, and this Court will not consider subsequent events in reviewing the District Court’s findings. If, in fact, circumstances have substantially changed since the time of trial, § 40-4-208, MCA, sets forth the procedure for modifying a maintenance award.

¶21 2. Did the District Court abuse its discretion in awarding Linda maintenance of $1,000 per month?

¶22 Andy also argues that the $1,000 per month maintenance awarded Linda by the District Court was unreasonable and excessive. Andy contends that, in addition to erroneously imputing $1,000 of trust income to him, the District Court also erroneously inflated the income he received through his employment at Williston Basin. We review a district court’s award of maintenance to determine whether it is clearly erroneous. In re Marriage of Brandon (1995), 271 Mont. 149, 152, 894 P.2d 951, 952-53.

¶23 Andy contends that nothing in the record supports the District Court’s finding that his “annual gross income at [Williston Basin] is approximately $36,000.” We disagree. Linda admitted into evidence the child support worksheet, which was completed using figures from Andy’s child support affidavit. This worksheet listed Andy’s annual gross income, presumably including his annual trustee income of $12,000, as $49,616. Further, Andy’s 1994 tax return (the most recent return he had prepared prior to trial) listed Andys income from wages, salaries, and tips as $36,368 and total income as $48,676. ¶24 Andy asserts that his actual “take home” earnings from working at Williston Basin are approximately $1,950 per month. However, at trial, he presented the District Court with no evidence to support this assertion. The District Court noted in its denial of Andys motion to alter and amend: “[Andys] income was determined in an approximate amount in part because he failed to present evidence of current tax returns, detailed accounting and valuation of benefits.” We determine that the District Court’s finding that Andys annual income from Williston Basin was $36,000 is not clearly erroneous.

¶25 The District Court found that with his salary from Williston Basin, his health insurance and retirement benefits, the $1,000 per month trustee fee, and the value of the truck, maintenance, fuel and insurance provided him under the terms of the trust, Andy’s net monthly income was $3,600. According to his own testimony, Andy’s monthly expenses, including $500 in child support, total $1,500. The District Court found that “[Andy] still has sufficient income to meet his needs and provide for the needs of [Linda]” and awarded her $1,000 per month in maintenance. The record contains substantial evidence to support these findings.

¶26 We hold that the District Court’s award of maintenance was not clearly erroneous.

¶27 3. Did the District Court err in excluding Andys trust interest from the marital estate?

¶28 Initially, the District Court ordered Bernadene to answer discovery aimed at determining the value of the John G. Beadle Revocable Trust. The court held that the trust is a “vested remainder, subject to divesture” and, thus, part of the marital estate. However, after Bernadene presented the District Court with proof that she had executed a codicil to her will exercising her power of appointment to exclude Andy from receiving any trust proceeds, the District Court overruled its prior order compelling discovery of the trust assets and held that because Bernadene had exercised her power of appointment, Andy no longer had any vested remainder interest in the John G. Beadle Revocable Trust. In her reply brief, which was filed after Bernadene’s death, Linda argues that the District Court erred in not including Andy’s trust interest in the marital estate because, regardless of the status of Bernadene’s will prior to her death, Andy’s interest was vested.

¶29 Although the District Court was correct in holding that Andy’s interest in the trust should not be included in the marital estate, we disagree with the District Court’s reasoning. While it is possible to reconcile the holdings of past cases discussing when an interest acquired through a testamentary trust or devise should be considered for the equitable division of the marital estate, no clear general rule has been enunciated. Thus, we attempt to clarify what has heretofore been an unclear area of the law.

¶30 Under § 40-4-202, MCA, in dividing the property of the marriage, the court shall consider “the opportunity of each for future acquisition of capital assets and income.” We discussed whether a spouse’s interest in a testamentary trust is properly considered in dividing the marital estate in In re Marriage of Meeks (1996), 276 Mont. 237, 915 P.2d 831. In Marriage of Meeks, 276 Mont. at 242, 915 P.2d at 834, Linda Meeks moved to dissolve her marriage from Alan Meeks. In his will, Alan’s father had established a testamentary trust for the benefit of his wife, Alan’s mother, and named Alan and his brother as co-trustees. Marriage of Meeks, 276 Mont, at 243, 915 P.2d at 835. According to the terms of the will, the trust was to terminate upon his wife’s death and be distributed equally between Alan, his brother, and his sister. Marriage of Meeks, 276 Mont. at 243, 915 P.2d at 835. The will also contained a spendthrift provision which provided that no title in the trust or income therefrom would vest prior to actual distribution. Marriage of Meeks, 276 Mont. at 243, 915 P.2d at 835. Prior to the dissolution proceedings, his father passed away.

¶31 Alan moved the district court to exclude his interest in the testamentary trust, and the court granted the motion. Marriage of Meeks, 276 Mont. at 243, 915 P.2d at 835. On appeal, Linda argued that Alan’s interest in the trust was a vested remainder and should therefore have been considered part of the marital estate. Marriage of Meeks, 276 Mont. at 244, 915 P.2d at 835. This Court noted that a vested remainder is “’one which is limited to an ascertained person in being, whose right to the estate is fixed and certain, and does not depend on the happening of any future event, but whose enjoyment and possession is postponed.... [A] vested remainder is not rendered contingent by the fact that it may never vest in possession.’ ” Marriage of Meeks, 276 Mont. at 244, 915 P.2d at 835-36 (quoting 23 Thompson on Real Property, 325-26).

¶32 We held that because the interest was not dependent upon the occurrence of some future event, it was a vested remainder. Marriage of Meeks, 276 Mont, at 244, 915 P.2d at 836. In other words, Alan was sure to inherit so long as he did not predecease his mother or she did not deplete the trust corpus. Marriage of Meeks, 276 Mont. at 244, 915 P.2d at 836. Therefore, we labeled Alan’s interest in the testamentary trust a vested remainder subject to divestment. Marriage of Meeks, 276 Mont. at 244, 915 P.2d at 836.

¶33 However, having labeled Alan’s interest a vested remainder, we noted that “[s]uch classifications, however, are not necessarily controlling regarding how a remainder interest should be treated. When such interests are created by a will, the testator’s intent also must be considered.” Marriage of Meeks, 276 Mont. at 244, 915 P.2d at 836. We stated that “[t]he testator’s intent, if clearly articulated, can preserve as contingent a remainder which otherwise would be deemed to have vested.” Marriage of Meeks, 276 Mont. at 245, 915 P.2d at 836. We then held that the spendthrift provision in Alan’s father’s will clearly expressed his intent that Alan’s interest in the trust would remain contingent until distribution. Marriage of Meeks, 276 Mont. at 245-46, 915 P.2d at 836. We concluded that, therefore, the district court did not err in holding that this interest was not part of the marital estate. Marriage of Meeks, 276 Mont. at 246, 915 P.2d at 836.

¶34 In contrast, in In re Marriage of Hill (1982), 197 Mont. 451, 643 P.2d 582, this Court included Robert Hill’s remainder interest in land in the marital estate. Robert’s father, in his will, devised to Robert a remainder interest in land with a life estate to his wife, Robert’s mother. Marriage of Hill, 197 Mont. at 457, 643 P.2d at 586. The district court held that Robert’s interest was a vested interest subject to divestment and therefore not to be included in the marital estate. Marriage of Hill, 197 Mont. at 458, 643 P.2d at 586. This Court reversed, holding that the mere fact that Robert could predecease his mother, the life tenant, did not convert his vested interest into one subject to divestment. Marriage of Hill, 197 Mont. at 458, 643 P.2d at 586. We held “[a]t the time of the marriage dissolution... [Robert] had a remainder interest with a present value, a property interest which will ripen into a full one-fourth interest in all of the land upon the death of his mother.” Marriage of Hill, 197 Mont. at 458, 643 P.2d at 586. We concluded that because Robert’s interest “could be sold or otherwise alienated, transferred or mortgaged, the property had a present value and should be included.” Marriage of Hill, 197 Mont. at 459, 643 P.2d at 587.

¶35 In Buxbaum. v. Buxbaum (1984), 214 Mont. 1, 692 P.2d 411, this Court considered a vested trust interest and concluded it was properly included in the marital estate. Adam and Bonita Buxbaum’s marriage was dissolved, and their marital assets distributed. Buxbaum, 214 Mont, at 3,692 P.2d at 412. Prior to his death, Adam’s father had transferred shares of stock to a testamentary trust for his wife’s benefit. Buxbaum, 214 Mont. at 4, 692 P.2d at 412. At her death, a majority of the trust principal was to go to Adam. Buxbaum, 214 Mont. at 4, 692 P.2d at 412. Both Adam and Bonita characterized Adam’s interest in the trust as a vested future interest subject to defeasance, but Bonita argued that it should be included in the marital estate. Buxbaum, 214 Mont. at 6, 692 P.2d at 413. The district court included the present value of Adam’s remainder interest in the trust in the marital estate. Buxbaum, 214 Mont. at 7, 692 P.2d at 413. This Court affirmed, holding that even though Adam’s interest was subject to divestment — he could predecease his mother — the district court did not abuse its discretion by considering this interest in the marital estate.

¶36 In Marriage of Hill, Buxbaum, and Marriage of Meeks, the interest considered was a vested interest; that is, (1) the interest was limited to an ascertained person in being; and (2) that person’s right to the estate was fixed and certain and did not depend on the happening of any future event. In Marriage of Hill and Buxbaum, the only event that could divest the spouse of his interest was if he predeceased the owner of the life interest. Likewise, in Marriage of Meeks, the spouse was sure to receive his interest in the trust corpus so long as he did not predecease his mother. However, this Court held that the spendthrift provision evidenced the intention of the settlor of the trust that the spouse’s interest not vest until the trust proceeds were distributed. These cases all stand for the general proposition that only a vested remainder may be considered in evaluating the opportunity for future acquisition of assets or income under § 40-4-202, MCA, and that even where the interest is vested, the intent of the testator can render it contingent.

¶37 In this case, however, Andy’s interest in the John G. Beadle Revocable Trust was not a vested interest. Bernadene had a life interest in the John G. Beadle Revocable Trust and the power to appoint by will the remainder of the trust among the couple’s descendants. Only in the event that Bernadene did not choose to exercise her power of appointment would the trust corpus be distributed among John and Bernadene’s children, including Andy. We noted in Marriage of Meeks, 276 Mont, at 244, 915 P.2d at 835-36, “[generally, a remainder will be considered contingent if the recipient is unknown or if the interest will only vest upon the occurrence of an event which is not certain to happen.” Until Bernadene passed away, it was not known how the John G. Beadle Revocable Trust would be distributed, and the recipients of the interest were not known.

¶38 The District Court initially characterized Andy’s interest as a vested interest, subject to divesture. However, prior to trial, Bernadene executed a codicil to her will, exercising her power of appointment to disinherit Andy. The District Court held that “by reason of the divesture taking place, Andy no longer has any vested remainder interest in the John G. Beadle Revocable Trust. Unless the remainder interest is vested, it cannot be included in the marital estate.” We determine that the District Court was correct in holding that a remainder interest can only be considered if it is vested, but that it incorrectly based its classification of Andys interest on the status of Bernadene’s will. The provisions of Bernadene’s will only became significant at her death, when the power of appointment was exercised. Andy’s interest remained contingent through trial and up until Bernadene’s death in April 1998.

¶39 The parties also cite Goodmundson v. Goodmundson (1982), 201 Mont. 535, 655 P.2d 509, and Johnston v. Johnston (1991), 249 Mont. 298, 815 P.2d 1145. Unlike the cases discussed to this point, which involve a spouse whose parent has died and left him a future interest (vested or contingent), Johnston and Goodmundson involve the issue of whether the district court may include a spouse’s possible inheritance in the marital estate, prior to the death of the devisor. We conclude it cannot.

¶40 In Johnston, 249 Mont, at 303, 815 P.2d at 1148, John Johnston argued that the district court erred in not including his wife Mary’s expected future inheritance from her father in their marital estate. At trial, Mary’s father testified that he had given Mary gifts inter vivos to provide for her comfort and to effectuate his estate plan. Johnston, 249 Mont. at 303, 815 P.2d at 1148. He then testified that Mary could expect a “pittance” of inheritance upon his death and that he intended to leave the bulk of his estate to charity. Johnston, 249 Mont. at 304, 815 P.2d at 1148. This Court held: “Basing Mary’s future acquisition on an inheritance to be received upon the death of her father is highly speculative and thus, inappropriate. We therefore hold that the District Court did not err regarding consideration of Mary’s expected inheritance.” Johnston, 249 Mont. at 304, 815 P.2d at 1148.

¶41 The holding in Johnston, 249 Mont, at 304, 815 P.2d at 1148, lends support to our analysis here. A will is a revocable instrument which does not take effect until the death of its maker. McReynolds v. McReynolds (1966), 147 Mont. 476, 414 P.2d 531. Thus, like Andy, Mary Johnston could not know whether she would have an interest in her father’s estate until his death. Johnston, 249 Mont. at 304, 815 P.2d at 1148. Therefore, this Court concluded that her possible inheritance should not be included in the marital estate. Johnston, 249 Mont. at 304, 815 P.2d at 1148.

¶42 However, in Goodmundson, the district court considered the husband’s “sizeable” expected inheritance in distributing the marital property. This Court affirmed, holding: “Under section 40-4-202, MCA, the District Court must consider future acquisition of assets. The husband’s expectation of a sizeable inheritance is therefore a valid consideration in the equitable distribution of the marital property.” Goodmundson, 201 Mont. at 540, 655 P.2d at 512. Again, a will may be modified or revoked at any time prior to the testator’s death and passes no interest until that time. McReynolds, 147 Mont. at 480, 414 P.2d at 533. The Goodmundson Court did not mention the type or value of interests involved or the extent to which the district court relied on the inclusion of the husband’s expected inheritance. However, to the extent Goodmundson, 201 Mont, at 540, 655 P.2d at 512, holds that the value of an expected inheritance may be included in the marital estate, it is overruled.

¶43 We determine that Andy’s interest in the John G. Beadle Revocable Trust was contingent and could not be ascertained until Bernadene’s death. Therefore, the District Court did not err in ex-eluding Andy’s interest in the trust from the marital estate. We determine that our prior holdings in Marriage of Meeks, 276 Mont. at 245-46, 915 P.2d at 836; Buxbaum, 214 Mont. at 6-7, 692 P.2d at 413-14; and Marriage of Hill, 197 Mont. at 458-59, 643 P.2d at 586-87, stand for the proposition that only a vested interest may be considered in dividing in the marital estate and, even then, the testator’s intent may convert the vested interest to a contingent one. Lastly, we hold that a spouse’s possible inheritance is never properly included in the marital estate nor considered in dividing the marital estate and overrule Goodmundson, 201 Mont. at 540, 655 P.2d at 512.

¶44 Based on the foregoing, we affirm the decision of the District Court.

CHIEF JUSTICE TURNAGE, JUSTICES REGNIER and NELSON concur.

JUSTICE TRIEWEILER

specially concurring.

¶45 I concur with the result of the majority opinion. I do not agree with all that is said therein.

¶46 Although I understand that the majority’s purpose during its discussion of Issue 3 is to simply distinguish between vested remainders and contingent remainders for the purpose of evaluating the certainty with which a future interest will be realized, I am concerned that language in the majority opinion infers that gifted or devised property which is vested is automatically included in the marital estate. Whether or not gifted, devised, or preacquired property is included in a marital estate for purposes of distribution and, if so, the extent to which such property is included, depends on factors other than whether or not the recipient’s interest is vested. For example, we have previously held that pursuant to § 40-4-202, MCA, preacquired, gifted, or devised property need not be included in the marital estate unless the nonacquiring spouse contributed to its preservation or appreciation. We have further held that only in the event the nonacquiring spouse did contribute, is the nonacquiring spouse entitled to an equitable share of the appreciated or preserved value which is attributable to his or her efforts. See Smith v. Smith, (1995) 270 Mont. 263, 891 P.2d 522; In re Marriage of Bradshaw (1995), 270 Mont. 222, 891 P.2d 506; In re Marriage of Smith (1994), 264 Mont. 306, 871 P.2d 884; In re Marriage of Rock (1993), 257 Mont. 476, 850 P.2d 296; In re Marriage of Keedy (1991), 249 Mont. 47, 813 P.2d 442; In re Marriage of Gallagher (1991), 248 Mont. 100, 809 P.2d 579; In re Marriage of Luisi (1988), 232 Mont. 243, 756 P.2d 456; In re Marriage of Fitzmorris (1987), 229 Mont. 96, 745 P.2d 353; In re Marriage of Herron (1980), 186 Mont. 396, 608 P.2d 97.

¶47 For these reasons, although I concur with the majority’s conclusion affirming the District Court’s exclusion of Andy’s interest in his father’s testamentary trust from the marital estate, I do not agree. with all of the language in the majority opinion.


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff/Respondent, v. GLENN NELSON, Defendant/Appellant.
    No. 97-306.
    Submitted on Briefs August 13, 1998.
    Decided September 10, 1998.
    1998 MT 227.
    55 St.Rep. 949.
    291 Mont. 15.
    966 P.2d 133.

      For Appellant: Carrie L. Garber, Deputy Public Defender, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Billings.
   JUSTICE NELSON

delivered the Opinion of the Court.

¶1 Glenn Nelson (Nelson) appeals from the April 23,1997 order of the Thirteenth Judicial District Court, Yellowstone County, revoking his suspended sentence. We reverse and remand for further proceedings and for entry of an order consistent with this opinion.

Background

¶2 On September 18,1990, Nelson pleaded guilty to the offenses of sexual intercourse without consent, a felony (Count I), sexual assault, a felony (Count II), and unlawful transactions with children, a misdemeanor (Count III), in cause number DC 90-261. He also pleaded guilty to domestic abuse, a felony, in cause number DC 90-101. On December 7,1990, as to DC 90-261, the District Court sentenced Nelson to thirty years at the Montana State Prison (MSP) with twenty years suspended on Count I; ten years at MSP on Count II; and six months in the county jail on Count III. As to DC 90-101, the court sentenced Nelson to five years at MSP. All sentences in both causes were ordered to run concurrently.

¶3 As part of the sentencing order the court required, among other things, that Nelson not be considered for parole until he had successfully completed the sexual offender program at MSP. However, Nelson was never paroled from MSP. Rather, on April 15, 1996, he was discharged from MSP and began the suspended portion of his sentence in Hardin, Big Horn County, Montana.

¶4 On July 1,1996, the Big Horn County Attorney filed a petition for revocation of Nelson’s suspended sentence alleging that Nelson had violated and disregarded the rules and regulations of his probation. In support of his petition, the County Attorney attached and incorporated by reference a “report of violation” from Nelson’s probation officer. In relevant part, this report stated:

SPECIAL COURT CONDITION #6:

The Defendant shall not be considered for parole until he has successfully completed the sexual offender program at the Montana State Prison.

SPECIAL CONDITION #7:

The Defendant shall, as a condition [sic] from the Montana State Prison enroll and maintain an aftercare program. He shall also continue out-patient treatment for his illness for as long as his mental health professionals or other professionals feel that it is necessary.
On 6-4-96, the Defendant met with Mike Sullivan of South Central Treatment Associates in an effort to enroll in sex offender treatment program. Mr. Sullivan entered into a contract which was signed by the Defendant outlining the conditions set forth for his treatment obligations (see attached).
One of the conditions specified by Mr. Sullivan is that the Defendant be placed on intensive supervision in the Billings area.
On 6-12-96, the Defendant’s file was screened by the Intensive Supervision program’s screening committee and was denied (see attached).

ADJUSTMENT TO SUPERVISION:

The Defendant failed to enter into and complete A Sex Offender program, due to his supervision denial by the Intensive Supervision program in Billings, Mt.

According to the referenced attachment to the probation officer’s report, Nelson was denied admission to the Intensive Supervision Program (ISP) because his residence was not approved by the ISP screening process.

¶5 . On July 22, 1996, the Yellowstone County Attorney filed an amended petition for revocation, along with an amended affidavit in support of the petition, alleging that:

Since on or before the 4th day of June, 1996, the defendant has failed to enroll in an aftercare program, failed to participate in outpatient treatment and failed to participate in sex offender treatment program.

¶6 On August 2,1996, Nelson appeared with court-appointed counsel from the Yellowstone County Public Defenders’ Office. Nelson admitted that the facts alleged in the petition for revocation were true but asserted that these facts did not constitute grounds for a revocation of his suspended sentence. The State requested an evidentiary hearing and counsel discussed the necessity for submitting briefs in support of their respective positions in advance of the hearing. Accordingly, on August 6,1996, the trial court ordered the parties to submit legal memoranda supporting their respective positions concerning whether the facts admitted to by Nelson constituted grounds for revocation of his suspended sentence. Briefs were submitted, and on October 4, 1996, the District Court entered an order denying the State’s petition for revocation.

¶7 In pertinent part, the court’s order provides as follows:

IT IS HEREBY ORDERED that the Petition for Revocation of the Order Suspending Sentence dated the 7th day of December, 1990, be denied upon the following additional conditions:
1. The defendant shall participate in, successfully complete and abide by the rules of the Intensive Supervision Program (I.S.P.), follow the contract provisions of all three phases, including independent living situation. Defendant understands that any violation of the program rules and contract can result in revocation of the suspended sentence and the defendant will face the original sentence in prison.
2. The defendant shall have no alone-contact with minor children unless a responsible adult is present, one fully aware of defendant’s offending pattern.
IT IS FURTHER ORDERED that the said GLENN NELSON be, and he is hereby notified that it is his duty to register as a Sex Offender as required by § 46-18-254 and § 46-23-501 through 46-23-508, Montana Codes Annotated.
In all other respects, the previous Orders, conditions and reasons ofthis Court stated on the 7th day of December 1990, shall remain unchanged and are reimposed and shall continue as if set forth herein, all under the authority of this Court and defendant’s Supervision Officer.

¶8 At some point following the State’s filing of its petition for revocation, but prior to the court’s October 4,1996 order denying the petition, Nelson began residing at the Rescue Mission, a homeless shelter in Billings. Since this residence was apparently acceptable to the program’s screeners, Nelson was placed in ISR

¶9 He was not yet out of the woods, however. On October 11,1996, the Yellowstone County Attorney’s Office filed another petition for revocation of Nelson’s suspended sentence based on an allegation that

on or about the 3rd day of October, 1996, the defendant while residing at the Mission kissed a minor girl; therefore has been terminated from the New Life Program and sex offender treatment with South Central Treatment Associates.

This petition, likewise, incorporated the probation officer’s report of violation.

¶10 A hearing on the County Attorney’s petition was held on April 14,1997, and on April 23,1997, the court entered its order revoking Nelson’s suspended sentence. The court found that Nelson had violated the terms and conditions of his suspended sentence by violating the court’s October 4,1996 order, condition number 2, that “[t]he defendant ... have no alone-contact with minor children unless a responsible adult is present, one fully aware of defendant’s offending pattern,” and State’s special condition number 2, that Nelson “participate in sexual offender counseling on a regular basis as determined by [the] Intensive Supervision Officer [and] ... have no contact with minor children.” As a result of these findings the court committed Nelson to MSP for the balance of the time previously suspended. This appeal followed.

Issues

¶11 Nelson presents three issues for our review:

¶12 1. Whether the District Court erred when, having denied the State’s petition to revoke Nelson’s suspended sentence, it added new conditions to the original suspended sentence.

¶13 2. Whether the Department of Corrections can unilaterally and without leave of court require sex-offender treatment as a new condition of the suspended portion of a probationer’s sentence.

¶14 3. Whether a licensed therapist who provides therapy to a probationer can require that probationer be imprisoned or otherwise restrained of liberty during the course of therapy.

¶15 Because our decision as to Issue 1 is dispositive, we decline to address Issues 2 and 3.

Standard of Review

¶16 Typically, we review a district court’s decision to revoke a suspended sentence to determine whether the court abused its discretion and whether the court’s decision was supported by a preponderance of the evidence in favor of the state. See, e.g., State v. Lindeman (1997), 285 Mont. 292, 302, 948 P.2d 221, 228 (citations omitted). Where, however, the issue is whether the court followed the statutory requirements applicable to the revocation proceedings, the question is one of law over which our review is plenary. We decide the case at bar under this latter standard.

Discussion

¶17 Whether the District Court erred when, having denied the State’s petition to revoke Nelson’s suspended sentence, it added new conditions to the original suspended sentence.

¶18 Nelson argues that, having denied the State’s July 1, 1996 (amended July 22, 1996) petition to revoke his suspended sentence, the District Court imposed the new probation conditions set forth in its October 4,1996 order in violation of § 46-18-203, MCA (1995). The State responds that the court substantially complied with this statute when it imposed the added conditions of probation and that these conditions properly served as the basis for the revocation of Nelson’s suspended sentence. We disagree with the State and agree with Nelson.

¶19 Section 46-18-203, MCA (1995), sets out the statutory law governing the revocation of a suspended or deferred sentence. In relevant part, this statute provides:

(7) If the court finds that the defendant has violated the terms and conditions of the suspended ... sentence, the court may:
(b) continue the suspended sentence with modified or additional terms and conditions. [Emphasis added.]

¶20 In the construction of a statute, we are simply to ascertain and declare what is in terms or in substance contained therein, neither inserting what has been omitted nor omitting what has been inserted. Section 1-2-101, MCA. Applying this oft-cited black letter law to the statute at issue here, it is clear that the plain language of § 46-18-203(7)(b), MCA (1995), requires that the trial court find the defendant violated the terms and conditions of the suspended sentence as a predicate to exercising its authority to continue the suspended sentence with modified or additional terms and conditions. ¶21 In the case sub judice it is undisputed that the District Court’s October 4, 1996 order contains no express finding that Nelson violated the terms and conditions of his suspended sentence. Nevertheless, the State argues that such a finding was implicit in the court’s order. We cannot agree.

¶22 In the first revocation proceedings, Nelson contested the State’s argument that his admitted failure to enroll in and complete the sex-offender treatment program while on probation constituted a violation of the terms of his suspended sentence. In this regard, the record supports Nelson’s position. Although Nelson attempted to enroll in the sex-offender treatment program, the therapist refused to admit him unless he was a participant in ISP. However, ISP would not accept Nelson because it determined that his place of residence was unacceptable. Under these circumstances, it is more likely that the court agreed with Nelson —i.e., that his technical failure to enroll in sex-offender treatment did not constitute an actual violation of the terms and conditions of his suspended sentence because his inability to enroll in the sex-offender treatment program was not for any lack of a good faith attempt to do so on his part. Rather, impediments imposed by the therapist and the State prevented his enrollment. Once the State found him a new place to live, he was accepted into ISP and thereafter into the sex-offender treatment program.

¶23 If the court had concluded that Nelson had, in actuality, violated his suspended sentence, then the court would have granted the State’s petition. In point of fact, the court denied the State’s petition. On this record, we are unwilling to make the leap of logic necessary to conclude, as does the State, that in denying its petition to revoke, the court was also finding that Nelson was in violation of the terms and conditions of his suspended sentence. If we are to surmise anything from this, it is that the court found no actual violation.

¶24 That brings us to the trial court’s October 4,1996 order. It is well-established that a district court’s authority to impose sentences in criminal cases is defined and constrained by statute. State v. Wilson (1996), 279 Mont. 34, 37, 926 P.2d 712, 714. Moreover, “a district court has no power to impose a sentence in the absence of specific statutory authority.” State v. Hatfield (1993), 256 Mont. 340, 346, 846 P.2d 1025, 1029 (citations omitted); Wilson, 279 Mont. at 37, 926 P.2d at 714. Here, having failed to make the statutorily required predicate finding that Nelson violated the terms and conditions of his suspended sentence, the trial court was without authority to continue his suspended sentence with modified or additional terms and conditions. Section 46-18-203(7)(b), MCA (1995).

¶25 Importantly, it was Nelson’s violation of one of these conditions added in the court’s October 4,1996, order — i.e., that Nelson “have no alone-contact with minor children unless a responsible adult is present, one fully aware of defendant’s offending pattern” — that provided the basis for the State’s October 11,1996 petition to revoke and, ultimately, the District Court’s determination that the violation of this added condition necessitated revoking Nelson’s suspended sentence. (Nelson was participating in a sex-offender treatment program at the time the State’s October 11,1996 petition was filed, so he was not in violation of that condition of the court’s original suspended sentence.) ¶26 In short, since the court was without authority to impose any modified or added condition on Nelson’s probation (having denied the State’s July 22,1996 amended petition to revoke) the court was, likewise, without authority to revoke Nelson’s suspended sentence for violation of this condition.

¶27 Under the circumstances, the District Court’s April 23,1997 order revoking Nelson’s suspended sentence and its Judgment and Commitment of the same date must be vacated and Nelson must be restored to his probationary status under the terms and conditions imposed by the court in its December 7,1990 order suspending sentence.

¶28 . Reversed and remanded for further proceedings and for entry of an order consistent with this opinion.

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

      . This version of the Montana Code applies to the revocation proceeding at issue.


author: JUSTICE GRAY

text:
    IN RE THE MARRIAGE OF SUSAN J. PFEIFER, Petitioner and Respondent, and PHILLIP CHRISTOPHER MEREDITH PFEIFER, Respondent and Appellant.
    No. 98-054.
    Submitted on Briefs May 28, 1998.
    Decided September 10, 1998.
    1998 MT 228.
    55 St.Rep. 953.
    291 Mont. 23.
    965 P.2d 895.

      For Appellant: Philip J. O’Connell, Attorney at Law, Missoula.
    For Respondent: Keith W. McCurdy; McCurdy Law Firm, Poison.
   JUSTICE GRAY

delivered the Opinion of the Court.

¶1 Phillip Christopher Meredith Pfeifer (Chris) appeals from the Findings of Fact, Conclusions of Law and Order entered by the Twentieth Judicial District Court, Lake County, after proceedings on remand from this Court. We affirm.

¶2 Chris raises the following separately stated, but related, issues on appeal:

¶3 1. Did the District Court exceed its jurisdiction on remand by

amending the distribution of the marital estate to maintain the equitable distribution established in its original findings, conclusions and order?

¶4 2. Did the District Court ignore the law of the case by amending the distribution of the marital estate to maintain the equitable distribution established in its original findings, conclusions and order?

BACKGROUND

¶5 Susan J. Pfeifer (Sue) and Chris married in 1988 and had one child. Their marriage was dissolved in 1995, at which time the District Court designated Sue as the minor child’s primary residential custodian and set child support in the amount of $6,977 per month, but declined to award Sue maintenance. The court also valued the marital estate at $2,560,644 and equitably distributed the property — in part, by giving Sue a possessory interest in the family home and 160 acres for IVA years, with that interest valued at $552,000, and by crediting her with that amount in distributing the marital estate. Finally, Sue was awarded attorney fees.

¶6 Both Chris and Sue appealed. Pfeifer v. Pfeifer (1997), 282 Mont. 461, 465, 938 P.2d 684, 687 (Pfeifer I). We reversed the award of attorney fees to Sue, determined that the District Court’s findings regarding Sue’s contribution to the marital estate were not clearly erroneous, concluded that the court had not abused its discretion by failing to award Sue sufficient income-producing property, upheld the court’s decision to include certain loans as debt chargeable to the marital estate, affirmed the court’s decision not to award maintenance to Sue and determined that the court had erred in valuing Sue’s possessory interest in the family home and 160 acres. Pfeifer I, 282 Mont. at 466-74, 938 P.2d at 688-92. In the latter regard, we determined that the court’s valuation lacked a substantial evidentiary basis and remanded “so that [the district court] may consider evidence regarding the value of Sue’s possessory interest in the family home and 160 acres.” Pfeifer I, 282 Mont. at 469, 938 P.2d at 689.

¶7 The District Court held a hearing on remand, received evidence relating to the value of Sue’s possessory interest in the home and land and, thereafter, found that the value of that interest equals the $138,000 rental value of the property, rather than its original valuation of that interest at $552,000. Sue contended that the decrease in value of her possessory interest also required corresponding corrections to the value of the marital estate and redistribution of that estate to maintain the approximately equal distributions to each party the court previously had determined to be equitable. Chris disagreed, arguing that the District Court’s jurisdiction on remand was limited to redetermining the value of Sue’s possessory interest in accordance with our opinion in Pfeifer I. The court ultimately accepted Sue’s position and its amendments flowing from the redetermination of the value of Sue’s possessory interest in the home and land resulted in Chris owing Sue an additional equalizing cash payment of $130,857. Chris appealed.

STANDARD OF REVIEW

¶8 [1,2] The issues presented on appeal from a district court’s distribution of marital property ordinarily involve the court’s findings of fact and ultimate decision regarding the equitable distribution of the marital estate. See, e.g., In re Marriage of Maedje (1994), 263 Mont. 262, 868 P.2d 580. In such cases, we review the district court’s findings to determine whether they are clearly erroneous; when substantial evidence supports the court’s findings and judgment, we will not overturn the district court’s decision unless there is an abuse of discretion. Marriage of Maedje, 263 Mont, at 265-66, 868 P.2d at 583 (citations omitted).

¶9 Here, however, Chris neither challenges the District Court’s findings of fact nor asserts error with regard to whether the court’s overall distribution of the marital estate is equitable. Instead, he contends that the District Court erred as a matter of law by exceeding its jurisdiction on remand and ignoring the law of the case as stated by this Court in Pfeifer I. We review a district court’s conclusions of law to determine whether they are correct. Ash Grove Cement Co. v. Jeffer son County (1997), 283 Mont. 486, 491-92, 943 P.2d 85, 89 (citation omitted).

DISCUSSION

¶10 1. Did the District Court exceed its jurisdiction on remand by amending the distribution of the marital estate to maintain the equitable distribution established in its original findings, conclusions and order?

¶ 11 As noted above, the District Court revalued Sue’s possessory interest in the home and land from $552,000 to $138,000. It then adjusted the total value of the marital estate accordingly and redistributed the estate to maintain the approximately equal distribution of property to each party it originally had determined to be equitable. In other words, the court essentially flowed its revaluation of Sue’s possessory interest through the remainder of its valuation and distribution of the estate. Relying on Haines Pipeline Const. v. Montana Power (1994), 265 Mont. 282, 876 P.2d 632, In re Marriage of Becker (1992), 255 Mont. 357, 842 P.2d 332, and Pfeifer I, Chris asserts that the District Court exceeded its jurisdiction on remand when it revalued and redistributed the marital estate.

¶12 [5] Chris correctly contends that, in Pfeifer I, we reversed the District Court’s valuation of Sue’s possessory interest in the home and land and remanded for the court to “conduct a hearing where it shall consider evidence which directly addresses the value of this possessory interest.” See Pfeifer I, 282 Mont. at 474, 938 P.2d at 693. He also is correct that, when a case is reversed and remanded, the trial court may not ignore the mandate and opinion of the reviewing court; instead, the trial court “must proceed in conformity with the views expressed by the appellate court.” See Haines Pipeline, 265 Mont. at 290, 876 P.2d at 637 (citation omitted).

¶ 13 In Chris’ view, our remand was narrow and permitted nothing more than a redetermination of the value of Sue’s possessory interest in the home and land. He characterizes Marriage of Becker as a case “remarkably similar” on the facts to the case presently before us and contends that it mandates a conclusion here that the District Court exceeded its jurisdiction on remand by revaluing and redistributing the marital estate on the basis of its redetermination of the value of Sue’s possessory interest. Chris’ reliance on Marriage of Becker is misplaced.

¶ 14 In Marriage of Becker, the parties had been before us in an earlier appeal in which we determined that the trial court improperly valued the marital real property and remanded that portion of the case for further consideration. On remand, the trial court revalued the marital real property, concluded that its jurisdiction on remand was limited to that matter and, consequently, refused the wife’s request to entertain testimony or other evidence relating to the valuation of marital personal property. Marriage of Becker, 255 Mont. at 359, 842 P.2d at 333.

¶15 The wife appealed, arguing that the court “should have considered all issues pertaining to division of marital property upon remand.” Marriage of Becker, 255 Mont. at 360, 842 P.2d at 333 (emphasis added). We observed that our instructions on remand limited the trial court to consideration of the valuation of the marital read property, and determined that the wife’s argument conflicted with those instructions. On that basis, we held that the trial court did not err in limiting testimony to that related to the value of the marital real property. Marriage of Becker, 255 Mont. at 360, 842 P.2d at 333. Implicit in our holding was a determination that the trial court would have erred in redetermining the value of other portions of the marital estate or in reopening all issues relating to the division of that estate.

¶ 16 Similar to the situation in Marriage of Becker, we remanded in Pfeifer I for the consideration of evidence regarding the value of Sue’s possessory interest in the home and land. Pfeifer I, 282 Mont. at 469, 938 P.2d at 689. In addition, the District Court here — like the court in Marriage of Becker — properly limited the evidence considered on remand to that specified in our remand instructions. To this extent, the present case and Marriage of Becker are, as Chris argues, remarkably similar.

¶17 The similarity between the two cases ends there, however. Here, unlike the wife in Marriage of Becker, Sue did not seek to introduce evidence of the value of portions of the marital estate unrelated to our instructions on remand or to have the court reopen and reconsider all issues pertaining to the distribution of the marital estate. She merely requested that the District Court follow through on its revaluation of her possessory interest by making corresponding changes in the valuation and distribution of the estate which would maintain the distribution originally determined to be equitable. The District Court did only that and nothing more; thus, Chris’ attempt to analogize the District Court’s actions subsequent to its redetermination of the value of Sue’s possessory interest in the home and land to the actions we implicitly determined would be erroneous in Marriage of Becker misses the mark.

¶18 District courts are required to equitably apportion the entirety of the marital estate. See § 40-4-202, MCA. They do not do so in a vacuum, of course; the distribution must be predicated on the net worth of the estate. See, e.g., Scott v. Scott (1990), 246 Mont. 10, 18, 803 P.2d 620, 625 (citation omitted); In re Marriage of Gies (1984), 210 Mont. 234, 238, 681 P.2d 1092, 1095 (citations omitted). Indeed, “ ‘[o]nly after a finding of net worth can the trial court make an equitable apportionment.’ ” Scott, 246 Mont. at 18, 803 P.2d at 625 (citation omitted). Pursuant to these authorities, it was incumbent upon the District Court — once it redetermined the value of Sue’s possessory interest, significantly decreasing the originally determined value — to flow that redetermination through the overall valuation of the marital estate and make such corresponding adjustments in the distribution of the estate as would retain the distribution earlier determined to be equitable. Moreover, to hold otherwise would be tantamount to having remanded for an ultimately “make work” redetermination by the District Court. Such an action — which would constitute an idle act by this Court and require an equally idle act by the trial court — would controvert the well-established legal maxim that “[t]he law neither does nor requires idle acts.” See § 1-3-223, MCA.

¶ 19 We hold that the District Court did not exceed its jurisdiction on remand by amending the value of the marital estate based on its redetermination of the value of Sue’s possessory interest and redistributing that estate to maintain the equitable distribution established in its original findings, conclusions and order.

¶20 2. Did the District Court ignore the law of the case by amending the distribution of the marital estate to maintain the equitable distribution established in its original findings, conclusions and order? ¶21 Chris also argues that we concluded in Pfeifer I that the original distribution of the marital estate was equitable and, as a result, the District Court’s amendment of that distribution on remand ignored the law of the case. He relies on generally applicable law of the case principles, as well as Haines Pipeline and Zavarelli v. Might (1989), 239 Mont. 120, 779 P.2d 489. While Chris properly characterizes the doctrine of law of the case and our authorities thereunder, we conclude that the law of the case is not implicated here.

¶22 Under the doctrine of the law of the case, issues addressed by this Court in a previous appeal in the same case are binding on the trial court and the parties in subsequent proceedings on remand. Marriage of Becker, 255 Mont. at 360, 842 P.2d at 334. In other words, once we have rendered a decision on a particular issue between the same parties in a case, that issue cannot be relitigated in a subsequent appeal. See Marriage of Becker, 255 Mont. at 361, 842 P.2d at 334 (citation omitted). The law of the case doctrine applies only to principles or rules of law necessary to our decision in the previous appeal. See Haines Pipeline, 265 Mont. at 289, 876 P.2d at 637 (citation omitted); Zavarelli, 239 Mont. at 124-25, 779 P.2d at 492 (citations omitted).

¶23 According to Chris, our statement in Pfeifer I that “the [district] court equitably distributed the marital estate” affirmed the distribution of the estate precisely as originally allocated and bound both the parties and the District Court by that law of the case. Thus, he contends that the court ignored the law of the case in redistributing the marital estate on remand based on its redetermination of the value of Sue’s possessory interest in the home and land. We disagree.

¶24 The statement from Pfeifer I on which Chris relies does not appear in our analysis and resolution of any of the six specific issues addressed therein. Instead, our statement that “[t]he court equitably distributed the marital estate” appears in the wrap-up section of our opinion which followed our analysis of the specific issues before us. See Pfeifer I, 282 Mont. at 474, 938 P.2d at 692. To that extent, the statement does not constitute a decision on a particular issue for law of the case purposes. Marriage of Becker, 255 Mont. at 360-61, 842 P.2d at 334 (citation omitted). Furthermore, because we had resolved the issues before us prior to that point in Pfeifer I, it is clear that the statement was not necessary to the decision and was, instead, obiter dictum. Consequently, it was not a principle or rule of law necessary to our decision so as to implicate the law of the case. See Haines Pipeline, 265 Mont. at 289, 876 P.2d at 637.

¶25 In essence, Chris’ argument is that a district court distributes particular pieces of property on a stand-alone basis rather than as part of an equitable distribution of the marital estate. He contends that, under the law of this case, Sue remains entitled to her possessory interest in the home and land, without regard to the substantially reduced value of that interest, together with the property earlier distributed to her and to nothing more. Pfeifer I does not support Chris’ contention.

¶26 Moreover, as discussed above, the equitable distribution of a marital estate can only be made after the worth of the estate has been determined. See, e.g., Scott, 246 Mont. at 18, 803 P.2d at 625. Here, the District Court’s original determination of the worth of the estate — and the 50/50 distribution it determined to be equitable based on that worth — took Sue’s possessory interest into account at a value of $552,000. When the District Court redetermined the value of that interest in the substantially reduced amount of $138,000 on remand, Sue’s share of the marital estate would have been substantially less than the approximately 50% originally awarded had the District Court not made corresponding adjustments first in the valuation — and then in the distribution — of the marital estate.

¶27 We hold that the District Court did not ignore the law of the case by amending the distribution of the marital estate to maintain the equitable distribution established in its original findings, conclusions and order.

¶28 Affirmed.

JUSTICES NELSON, REGNIER, TRIEWEILER and LEAPHART concur.