author: JUSTICE WEBER JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JANICE McCORD, Defendant and Appellant.
    No. 90-448.
    Submitted Nov. 5, 1991.
    Decided Jan. 16, 1992.
    Rehearing Denied Feb. 11, 1992.
    49 St.Rep. 53.
    251 Mont. 317.
    825 P.2d 194.

      For Defendant and Appellant: Gary E. Wilcox argued, Billings.
    For Plaintiff and Respondent: Marc Racicot, Atty. Gen., Kathy Seeley argued, Asst. Atty. Gen., Helena, Dennis Paxinos, County Atty., Curtis Bevolden, Dep. County Atty., Billings.
   JUSTICE WEBER

delivered the Opinion of the Court.

A jury from the Thirteenth Judicial District Court, Yellowstone County, convicted Janice McCord, the defendant, of conspiracy to commit deliberate homicide in violation of 45-4-102, MCA. Defendant appeals. We affirm.

Defendant raises the following issues for review:

(1) Did the District Court violate hearsay rules and defendant’s right to confrontation by admitting testimony of Alan Foster’s (Foster’s) statements where Foster was not available to testify?

(2) Did the State’s delay in processing swab tests constitute negligent suppression of exculpatory evidence, violate due process and require dismissal of the case?

On December 26, 1987, Russell McCord died of a gunshot wound through the temple. Defendant, the wife of Russell McCord, testified that she and Foster found her husband in his bed, covered with blood. Investigators did not find the murder weapon. The investigators found no signs of forced entry or theft of property at the residence. The wound was consistent with the caliber of a silver derringer owned by the decedent and formerly stored in the family safe at the McCord residence. That derringer was never located.

Defendant called 911 from their home. Emergency personnel testified that she told them that her husband was being medically treated for depression. The testimony established that statement was not true.

The prosecution established that in order to avoid delinquent federal tax debts, Russell McCord set up a family corporation to which various assets were transferred. The evidence established that money had been placed in the corporate bank account, but that the corporation had defaulted on payments owing on contracts for the purchase of property. The defendant, as treasurer, testified that she controlled the corporate finances and paid corporate bills, including making payments on a contract for deed on their residence. The evidence also established that the defendant was responsible for making payments on a contract for deed on a duplex property, which the McCords, together with Foster, had purchased. The evidence further established that the McCords and Foster had defaulted on a number of payments on the duplex contract and ultimately forfeited their interest in that duplex. In addition, the evidence established that the McCords received a notice of eviction on the family residence with such eviction to take place on December 27,1987. The defendant did not tell Russell McCord of the default, forfeiture or the impending eviction.

Three days before the homicide, defendant wrote to the sellers under the contract requesting a delay in eviction from their residence. She pointed out that Russell McCord’s brain cells were deteriorating, that he only had a few months to live, and that she would pay the delinquent obligation with his life insurance proceeds. The testimony established that the defendant’s statements regarding her husband’s illness were not true.

Prior to the shooting, in November 1987, someone took coins from Russell McCord’s collection, worth several thousand dollars. There was evidence to establish that Russell McCord suspected Foster or the defendant had removed the coins from the family safe.

The evidence established that Russell McCord had planned to hold an annual meeting of the family corporation on December 27, 1987, the day following his death. His plan had been to examine the corporate books, and discuss the missing coins. In addition, Russell McCord had disclosed his intention to require Foster to move out of the McCord home by January 1, 1988. At the time of the shooting, Foster had lived with the defendant and the decedent for almost eleven years. Dennis McCord testified that during that time, his mother, the defendant, and Foster were engaged in a long-term sexual affair.

On August 18, 1988, Foster was killed when he drove his pickup truck off U.S. Highway 212. While the death was officially ruled as an accident, a Montana Highway Patrol accident reconstruction expert, as well as an undersheriff who investigated the accident, testified that, in their opinion, Foster’s death was a suicide. Dennis McCord testified that two days before Foster’s death, he had told the defendant that she and Foster were going to be arrested for Russell McCord’s murder.

The first issue concerns the testimony by several witnesses to a number of statements Foster made following Russell McCord’s death. These will be discussed in further detail.

The defendant’s second issue involves swabs which investigators took from the hands of the decedent, defendant, and Foster at the scene of the murder. The State left these swabs in an evidence locker and did not process them to check for powder residue until just prior to the trial when defendant requested the analysis. As a result of this delay in processing, the results were not available until the fourth day of trial. At trial, the State’s witness testified that the swab tests were inconclusive because they did not detect gunshot residue on any of the three subjects. After the close of the State’s case, defense counsel moved to dismiss the case for negligent suppression of exculpatory evidence. Defendant claimed the State’s delay in processing the swab results prevented her from obtaining an expert to explain the significance of these inconclusive results to the jury.

I

Did the District Court violate defendant’s right to confrontation and the Montana Rules of Evidence by admitting Foster’s statements when Foster was not available to testify? The challenged statements are set out in numbered order below.

1. Defendant’s son Dennis and Dennis’ wife Grace, both testified that they drove Foster home after the police investigation at the station on the day of the murder. They testified that during the drive, Foster told them Russell McCord had been shot at a slight downward angle, from about twelve inches away with a small caliber weapon, probably a .22, and had suffocated in his own blood. He told them that he learned these details from emergency personnel.

2. Grace testified that on the eve of the funeral, Foster stated that he loved Russell McCord and “didn’t mean to do it.”

3. Dennis testified that he did not actually hear Foster’s statement, but that he told Detective Comfort that Grace said to him that Foster said he did not mean to “kill” Russell McCord.

4. Grace called the police immediately after telling Dennis of Foster’s statements. During the resulting interrogation, Foster feigned intoxication. The detective testified that when confronted, Foster stated he faked intoxication for “self-preservation.”

5. Detectives testified regarding Foster’s account of the particular time and sequence of his activities the afternoon of the homicide. His statements were inconsistent with the testimony of defendant and other witnesses.

6. Foster told detectives he was unaware that as a result of default, he and the McCords forfeited their interest in the duplex property. The State contradicted this statement at trial with other evidence.

A. Statements 1 and 2: Admissions Against Interest.

The District Court ruled that statements 1 and 2 fell within the hearsay exclusion of Rule 804(b)(3), M.R.Evid., which allows the admission of statements made by an unavailable declarant which so far tend to subject the declarant to criminal liability, that a reasonable man in his position would not have made the statement unless he believed it to be true. Defendant contends that the witnesses’ account of the statements were inaccurate, mischaracterized, and did not subject Foster to criminal liability.

The State contends that any statement which indicates an insider’s knowledge of or participation in a crime tends to subject the declarant to criminal liability. United States v. Alvarez (5th Cir. 1978), 584 F.2d 694, 700. Here, Foster’s description of Russell McCord’s wound and death indicate an insider’s knowledge of or participation in the murder. This further suggests that the statement subjected Foster to criminal liability and would come within the statement against interest portion of Rule 804(b)(3). We conclude the court properly admitted statement 1 into evidence under Rule 804(b)(3), M.R.Evid.

In a similar manner, we conclude Foster’s statement that he loved Russell McCord and did not mean to do it indicated knowledge of or participation in the crime and tended to subject him to criminal liability. At the time Foster made this statement, he knew the police considered him a suspect in the homicide. Two days prior to Foster saying that he did not mean to do it, police had extensively questioned him and swabbed his hands for powder residue. Given these circumstances, a reasonable man in Foster’s position would not have made this statement unless he believed it to be true. Thus, we conclude statement number 2 was properly admitted into evidence under Rule 804(b)(3), M.R.Evid.

Next, defendant contends Foster’s statements admitted as statements against interest are inculpatory, unreliable, and untrustworthy. In Rule 804(b)(3) “A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” State v. Powers (1988), 233 Mont. 54, 57, 758 P.2d 761, 763. The defendant asks us to expand this rule and exclude uncorroborated inculpatory declarations against interest.

“[I]nculpatory declarations against interest requires corroborating circumstances that ‘clearly indicate the trustworthiness of the statement ...’

“Under Rule 804(b)(3), trustworthiness is determined primarily by analysis of two elements: The probable veracity of the in-court witness, and the reliability of the out-of-court declarant.”

Alvarez, 584 F.2d at 701. We do not find it necessary to determine whether or not uncorroborated inculpatory declarations may be admitted. Here the State provided extensive corroboration. The corroboration includes the following: Russell McCord’s body was in his home with no sign of forced entry; the wound was consistent with a weapon owned by the decedent, kept in the family safe which police never found; Foster and defendant had access to the home and the safe; Dennis testified that Foster and the defendant were having an affair; Russell McCord had informed Foster he would have to move out; and finally Foster was aware that the decedent would find out about the bleak financial situation. Further, in Alvarez the in-court witness was a co- conspirator who turned state’s evidence in exchange for a lesser sentence. Here, Dennis and Grace McCord, the principal witnesses, had no similar motive to testify falsely, and were extensively cross- examined by defendant. We conclude the evidence clearly corroborated Foster’s statements.

Finally, defendant contends that statements 1 and 2 violate her right to confrontation guaranteed by Article II, § 24 of the Montana Constitution and the Sixth Amendment of the United States Constitution. This Court has examined several factors in addressing confrontation clause violations. State v. Weinberger, (1983), 204 Mont. 278, 665 P.2d 202. In Weinberger, the Court examined Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, and held that testimony did not violate the defendant’s right to confrontation where the statement was not critical to the prosecution, incriminating only in conjunction with other facts, and did not demonstrate a co-defendant’s recognized motivation to shift blame to others. Weinberger, 204 Mont. at 298, 665 P.2d at 213. Next in examining Dutton v. Evans (1970), 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed. 2d 213, Weinberger added:

"... [T]he statement did not contain an express assertion about past fact;... [the declarant’s] personal knowledge of the identities and roles of the other minder participants had been abundantly established by other evidence; and, that the possibility... [the declarant’s] statement was founded on faulty recollection was remote in the extreme. Finally, the circumstances provided widely recognized indicia of reliability where, as here, the statement was spontaneous and where it was against... [the declarant’s] penal interest to make it.”

Weinberger, 204 Mont. at 303, 665 P.2d at 215. We conclude Foster’s statements meet the requirements contained in Weinberger. First, the statements were not crucial to the State’s case in light of other evidence. The statements here did not incriminate the defendant, but rather tended to incriminate Foster. Until linked by other evidence to the defendant, the primary thrust of the statements was to link Foster to the homicide. Of itself, that did not establish that the defendant was also linked to the homicide. Additional evidence was required and was submitted by the State to establish that link. The statements were made by Foster within the two-day period after the homicide and the statements were spontaneous and against Foster’s interest. We hold the trial court did not violate Rules of Evidence or the defendant’s right to confrontation by admitting statements 1 and 2 in evidence.

B. Statement 3.

Dennis McCord testified that his wife, Grace, told him that Foster did not mean to kill the deceased. The defendant did not object to this questioning of Dennis McCord. The pertinent part of Dennis’ testimony is set out as follows:

[Direct exam]

“A.I gave my statement to, I think Detective Comfort, I think is who I gave it to, and then Grace gave hers, and they gave us a ride back out, I think, that was about it.
“Q. That night what did you tell Detective Comfort?
“A. I said that Grace said to me that Alan just said he didn’t mean to kill him.
“Q. Did you say anything else? Did you tell Detective Comfort that in your mind you had figured out the situation?
“A. Oh, yeah.”
[Cross exam]
“Q.Do you recall on the 28th, when the police came, when the detective came out to the house after your wife said that Alan had said, I didn’t mean to do it, do you recall talking to Detective Comfort at that point?
“A. I gave him [Detective Comfort] a statement after that.
“Q. Do you recall telling him at the scene, when he was out there that what your wife told you was, I am sorry, I didn’t mean to do it?
“A. I think I said that my wife told me that he didn’t mean to kill him.
“Q. You don’t recall telling Detective Comfort out at the house, I am sorry, I didn’t mean to do it?
“A. No. And in that case it would be semantics anyway.
“Q. It would be? Do and kill mean the same thing?
“A. When they are referenced that way, yes.”

Here, no objection was raised to this testimony at trial. We will not put a trial court in error where that court has not been given the opportunity to rule on the admissibility of evidence and to correct itself. Section 46-20-104(2), MCA. The issues were not properly raised before the District Court. We will not consider the issues of evidence and confrontation raised on this testimony.

C. Statement 4: Then-existing State of Mind.

The trial court admitted statements 4-6 as non-hearsay statements made by a co-conspirator under Rule 801(d)(2)(e), M.R.Evid. On appeal, the State presents an alternative basis for admitting each statement. We conclude that if Foster’s statements do not violate hearsay rules or defendant’s right to confrontation, we will affirm the decision of the trial court regardless of its basis in admitting the statements. Phillips v. City of Billings (1988), 233 Mont. 249, 252, 758 P.2d 772, 774.

The State contends that statement 4, Foster’s explanation for feigning intoxication during the police interrogation related to his then existing mental or emotional condition. Thus, it was properly admitted under Rule 803(3), M.R.Evid.:

“Then-existing mental, emotional, or physical condition. A statement of the declarant’s then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling,...), but not including a statement of memory or belief to prove the fact remembered or believed.”

Here, after giving Foster a breathalizer test, police asked him why he was faking intoxication. Foster’s “self preservation” statement was not to prove a fact remembered or believed, but a spontaneous response to his contemporaneous conduct of acting intoxicated. It explained the motivation for engaging in that conduct. Thus we conclude that Foster’s self-preservation statement falls within the hearsay exception of Rule 803(3), M.R.Evid.

Next, defendant argues that by admitting this statement the trial court violated her right to confront the declarant. State contends admitting this statement did not violate defendant’s right to confrontation. We agree that this statement meets the Weinberger criteria. First, Foster’s statement was not crucial to the prosecution. The statement was based on his personal knowledge. The statement did not attempt to shift blame to the defendant. It was spontaneous and tended to show the defendant’s involvement in the conspiracy only when linked to other testimony. Finally, this statement falls within a recognized exception to the hearsay rule. Weinberger, 204 Mont. at 298, 303, 665 P.2d at 213, 215. We hold that the admission of statement 4 neither violated the Rules of Evidence nor violated defendant’s right to confrontation.

D. Statement 5 and 6: Non-hearsay.

Finally, the State contends that statements 5 and 6 are non-hearsay. Rule 801(c), M.R.Evid. “Out-of court statements constitute hearsay only when offered in evidence to prove the truth of the matter asserted.” Anderson v. United States (1974), 417 U.S. 211, 219, 94 S.Ct 2253, 2260, 41 L.Ed.2d 21, 28-29. Here, the State offered Foster’s account of his activities the afternoon of the homicide to prove inconsistencies not to prove its truth. Likewise, Foster’s statements regarding the duplex property was introduced to show its falsity. Thus, we conclude the trial court did not violate hearsay rules by admitting statements 5 and 6.

Last, defendant contends the statements violated her right to confrontation. Again, using the Weinberger analysis, we conclude that defendant’s right to confrontation was not violated.

We hold that the court properly admitted statements 1 through 6 under the Rules of Evidence and under the confrontation clause.

II

Did the late receipt of the “swab” test results constitute negligent suppressing of exculpatory evidence, violate due process, and require dismissal of the State’s case?

Defendant contends that the delay in processing the swab test results was negligent suppression of exculpatory evidence by the State, and violative of due process. Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct 1194, 10 L.Ed. 2d 215.

The record discloses that defendant failed to object to this evidence during the trial, and did not request the court stay the proceedings until defendant could obtain experts to analyze the results. Under § 46-20-701(2), MCA, a defendant who fails to object to an alleged error at trial must prove the error was prejudicial to her guilt or punishment, and that the prosecutor, court for law enforcement agency suppressed the evidence and prevented the claim from being raised at trial. Here the record does not support either contention. The defendant has failed to demonstrate prejudice and failed to demonstrate that the State’s conduct prevented her claim from being raised. We hold the late receipt of the “swab” tests did not require dismissal of the State’s case.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, HUNT, McDONOUGH and GRAY concur.

JUSTICE TRIEWEILER

specially concurring.

I concur with the result of the majority opinion and would likewise affirm the judgment of the District Court. However, I do not agree with all of the majority’s reasons for its decisions. Specifically, I disagree that the statements referred to in paragraphs 1, 2, and 4 under Issue I were exceptions to the hearsay rule. I conclude that the statements were admissible because they were not hearsay at all. “Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), M.R.Evid. (emphasis added).

None of the statements referred to above were offered to prove the truth of what the out-of-court declarant had said. The issue with regard to those statements was whether they had been made at all. That issue depended on the truthfulness of the witness who testified in court that the statements had been made.

For example, the State did not offer Alan Foster’s statement that he “didn’t mean to do it” to prove that he unintentionally killed Russell McCord. If that statement were true, it would have been a defense to the charges against the defendant.

Because I do not believe that statements 1, 2, and 4 were hearsay, I cannot conclude that they come within any exception to the hearsay rule. I otherwise concur in the majority opinion.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAY LUNDQUIST, Defendant and Appellant.
    No. 91-110.
    Submitted on briefs Dec. 12, 1991.
    Decided Jan. 23, 1992.
    49 St.Rep. 65.
    251 Mont. 329.
    825 P.2d 204.

      For Appellant: William Boggs, Attorney at Law, Missoula.
    For Respondent: Marc Racicot, Attorney General, and John Paul-son, Assistant Attorney General, Helena; Robert L. Deschamps, III, County Attorney, and Betty Wing, Deputy County Attorney, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

In September 1988 Jay Lundquist pled guilty to sexual intercourse without consent. He was sentenced to ten years in the Montana State Prison with the entire sentence suspended on certain conditions of probation. In January 1991 the District Court of the Fourth Judicial District, Missoula County, revoked Lundquist’s probation. He appeals. We reverse and remand.

The issue is whether the District Court abused its discretion in revoking Lundquist’s probation and sentencing him to prison.

Lundquist was charged with sexual intercourse without consent upon information obtained from his former foster daughter. At the time of the complaint, she was a freshman in high school. Lundquist agreed to plead guilty in exchange for a recommendation by the State that he receive a three-year deferred imposition of sentence with a requirement that he complete a sexual offender treatment program under licensed clinical psychologist Michael Scolatti, Ph.D., or another approved program.

The District Court rejected the State’s recommendation and sentenced Lundquist to a term of ten years in the Montana State Prison, all suspended, with thirteen separate terms and conditions of probation. These included that he “shall obtain a sexual offender evaluation by Dr. Scolatti” at his own expense and that he “shall participate and complete counseling as recommended by the sexual offender evaluation.”

Between his sentencing in October 1988 and April 1990, Lundquist entered Dr. Scolatti’s program and attended seventy-six group therapy sessions and thirteen individual sessions. Each session required a 150-mile round trip from Lundquist’s residence in Philipsburg, Montana, to Dr. Scolatti’s office in Missoula, Montana. During this time, Lundquist had a 100 percent attendance record, with one excused absence. He paid Dr. Scolatti a total of $2,450 in counseling fees.

On May 7, 1990, Dr. Scolatti wrote to Lundquist stating that he was being terminated from the sexual offender program because he had failed to develop a payment schedule for his outstanding therapy balance of $1,260. A copy of the May 7 letter was provided to Lundquist’s probation officer.

On November 7, 1990, Dr. Scolatti wrote directly to Lundquist’s probation officer. In that letter, he stated that Lundquist had been terminated from the sexual offender program because 1) he was unable to pay for the program, and 2) he had repeatedly refused to participate in the written portion of the program. On December 7, 1990, the State filed a petition to revoke Lundquist’s suspended sentence. After a hearing at which the State presented testimony by Dr. Scolatti and his associate, and Lundquist and his wife testified, the District Court revoked the suspended sentence. The court found that Lundquist had violated the term of his probation that he “participate and complete counseling as recommended by the sexual offender evaluation.”

Section 46-23-1013(2), MCA, provides that

“[i]f the violation [of a condition of release on probation] is established [at a revocation hearing], the court may... revoke the probation or suspension of sentence and may require [the person on probation] to serve the sentence imposed or any lesser sentence and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.”

The standard for revocation of probation is whether the judge is reasonably satisfied that the conduct of the probationer has not been what he agreed it would be if he were given liberty. State v. Robinson (1980), 190 Mont. 145, 148-49, 619 P.2d 813, 815. This Court’s standard of review is whether the district court has abused its discretion. Robinson, 619 P.2d at 815.

In State v. Stangeland (1988), 233 Mont. 230, 758 P.2d 776, this Court affirmed the revocation of a suspended sentence based on Stangeland’s failure to complete an outpatient sexual offender treatment program. Stangeland had a “poor, hostile and uncooperative attitude,” verbally threatened to harm a program therapist, irregularly attended program sessions, visited the victim’s home, and consumed alcohol, all in violation of his contract with the sexual offender program. Stangeland, 758 P.2d at 778.

In State v. Friedman (1987), 225 Mont. 373, 732 P.2d 1322, this Court affirmed the revocation of a probationary period of defendant’s sentence for failure to complete a sexual offender treatment program. The director of the treatment program testified at the revocation hearing that Friedman did not attempt to participate in his treatment, that complaints had been received about Friedman contacting his victims, and that he considered Friedman to be extremely dangerous. Friedman, 732 P.2d at 1324.

In Stangeland and Friedman, the violations of the terms of probation were more grievous than the violations alleged here. In this case, the reason originally given in May 1990 for Lundquist’s termination from the sexual offender program was his failure to develop a schedule for payment of $1,260 he owed Dr. Scolatti. At that time, he had been in the program for eighteen months and had paid some $2,450 in counseling fees. At the revocation hearing, Lundquist introduced into evidence his income tax return for 1989, which showed that he and his wife, with one dependent daughter, had an adjusted gross income in 1989 of $6,713. He also testified that he had paid restitution to his victim in the amount of $540.

In November 1990, six months after Lundquist was terminated from the sexual offender treatment program, a second reason was given for his termination from the program. In the letter to Lundquist’s probation officer, Dr. Scolatti wrote that Lundquist was terminated from the program because of his “repeated refusals to participate in the written portion of the program.” At the revocation hearing, Dr. Scolatti testified that Lundquist attempted to act “more as a co-therapist rather than as a member of the group” in group therapy sessions. He further testified that Lundquist indicated that he had been through a religious metamorphosis or transformation and that he is no longer the man who committed the offenses. In Lundquist’s view, the man he has become does not require counseling, because he would not reoffend. He now talks to angels who guide him through most of his life. Dr. Scolatti testified that he had considered whether Lundquist was psychotic, but had concluded that this was simply Lundquist’s system of religious beliefs.

Dr. Scolatti testified that Lundquist agrees that child molestation is bad and that he admits to his offense. He also testified that there is a low to moderate probability that Lundquist will reoffend.

Here, the reasons for termination from the program were subtle and complicated. To the extent that revocation was based on Lundquist’s failure to pay full fees, we conclude that it was unreasonable, given the evidence of his low income and the fees he had already paid to Dr. Scolatti. To the extent revocation was based on Lundquist’s reasonable expression of his genuine religious beliefs, it appears to contravene his right to free exercise of religion.

We hold that, based on the evidence presented at the revocation hearing, the District Court abused its discretion in sentencing Lundquist to serve his original prison sentence. The terms of Lundquist’s probation did not require that he give up his religious beliefs or take food from his family’s table to pay for sexual offender counseling. He had an eighteen-month history of compliance with the only condition of probation which he was accused of violating. For over six months after he was terminated from the sexual offender program, no effort was commenced to have him removed from the community. Lundquist has no previous criminal history. As was suggested by Lundquist’s counsel, the District Court could have required him to offer a payment plan and apply for readmission into Dr. Scolatti’s program or to find another outpatient sexual offender treatment program.

We reverse the judgment of the District Court and remand this matter to District Court for further proceedings consistent with this Opinion.

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


author: JUSTICE McDONOUGH

text:
    IN RE THE MARRIAGE OF GARY BARNES, Petitioner and Respondent, and RICHELLE BARNES, Respondent and Appellant.
    No. 91-328.
    Submitted on briefs Dec. 4, 1991.
    Decided Jan. 23, 1992.
    49 St.Rep. 67.
    251 Mont. 334.
    825 P.2d 201.

      For Appellant: Bruce E. Lee, Billings.
    For Respondent: Linda L. Harris, Harris Law Firm, Billings.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Richelle Barnes appeals from a judgment of the Thirteenth Judicial District Court, Yellowstone County, denying her motion for a new trial. We affirm.

The sole issue on appeal is: Whether the District Court erred in denying appellant’s combined motions for a new trial and relief from judgment under Rules 59 and 60(b), M.R.Civ.P.

Gary and Richelle Barnes were married on August 20, 1973. Throughout their marriage the parties resided in Hysham, Montana, where they had a ranch/farm operation. The parties separated in July 1987. OnAugust21,1987, husband petitioned for divorce. The parties have three minor children. The only dispute on appeal centers around the value of the marital estate.

Whether a new trial is warranted is governed by Rules 59 and 60, M.R.Civ.P., and § 25-11-101, MCA, et seq. The relevant portion of Rule 59(a), M.R.Civ.P. is:

“A new trial may be granted to all or any of the parties and on all or part of the issues for any of the reasons provided by the statutes of the state of Montana

Section 25-11-102(1) and (4), MCA, governs the facts before us:

“The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:
“(1) irregularity in the proceedings of the court or abuse of discretion by which either party was prevented from having a fair trial;
“(4) newly discovered evidence material for the party making the application which he could not, with reasonable diligence, have discovered and produced at the trial;

We have previously set forth the guidelines for determining whether a new trial is justified in Marriage of Cherewick (1983), 205 Mont. 75, 666 P.2d 742:

“1. The alleged ‘newly discovered’ evidence came to the moving party after the trial;
“2. It was not want of due diligence which precluded its earlier discovery;
“3. The materiality of the evidence is so great it would probably produce a different result on retrial; and,
“4. The alleged ‘new evidence’ is not merely cumulative, not tending only to impeach or discredit witnesses in the case.”

Cherewick at 80, 666 P.2d at 744-745; citing Kartes v. Kartes (1977), 175 Mont. 210, 214-215, 573 P.2d 191, 194.

The pertinent portions of Rule 60(b) are:

“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons ... (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;...”

The scope of our review of a decision to grant or deny a Rule 60(b) motion depends on the issues involved. If there is a discretionary appraisal or weighing by the district court of the facts of a particular case, the district court’s determination on appeal is subject to abuse or misuse of discretion. Here, the scope of review is the standard abuse of discretion test. To determine whether or not the District Court abused its discretion, we must determine whether or not Richelle Barnes was prevented from having a fair trial, and whether the newly discovered evidence could have been discovered previously with exercise of reasonable diligence.

On September 18, 27, 1989, and November 13, 1989, the Honorable G. Todd Baugh heard testimony presented by both husband and wife. Both parties were represented by counsel. Testimony presented to Judge Baugh revealed that Gary Barnes and his mother, Marie Barnes, entered into an informal partnership in 1975. Marie purchased Gary’s half interest in the partnership in July 1987, after Gary and Richelle separated. The sale consisted of two sections of land for a purchase price of $40,000.

Gary testified that his mother put eight sections of land into the partnership in addition to all her farm machinery. He contributed two sections of land and 25 cows. Gary further testified that his sisters had some interest in his two sections of land. At the time of the hearing, Gary testified he had sixteen cows and thirteen calves.

At trial, Gary produced a list of farm equipment acquired by the partnership he had a half interest in. He valued the equipment at $7,300. Marie Barnes also testified as to the value and origin of the farm equipment.

Judge Baugh issued a final decree on May 23,1990. He made oral findings and conclusions on May 2, 1990. The District Court in recognizing some of the husband’s property was gifted and not part of the marital estate allocated 60 percent to the husband and 40 percent to the wife. He calculated the total net worth of the marital estate at $15,775, but he ordered Gary to pay Richelle $8,430. Gary has not objected to this division.

Richelle argues on appeal that newly discovered evidence revealed Gary sold assets to his mother for less than adequate consideration. Essentially, she argues that Gary misrepresented his financial history at trial, and that his net worth is much more than indicated in Judge Baugh’s findings and conclusions.

Although the evidentiary record, as Judge Baugh pointed out, is certainly sketchy and inadequate, nothing Richelle presents on appeal meets the standard for reasonable diligence set forth above. After trial Richelle obtained a deposition and financial statements from the Bank of Hysham, and tax assessment information and real estate information from the Treasure County courthouse and the Soil Conservation Service. This information, while enlightening on the value of the marital estate, could have been discovered before trial with reasonable diligence.

Richelle further argues that regardless of whether the evidence is “newly discovered,” Gary misrepresented his financial situation, essentially depriving her of a fair trial. We have previously discussed a similar situation in Marriage of Lance (1981), 195 Mont. 176, 635 P.2d 571, which also involved the value of assets within the marital estate. Lance involved a claim of fraud. We determined that the fraud must be such that the adversary is denied the opportunity to have a trial or fully present his/her side of the case, citing In re Marriage of Miller (1980), 189 Mont. 356, 616 P.2d 313. We noted that Lance’s wife did not prevent him from contradicting her evidence or having his day in court. Lance at 180, 635 P.2d at 574.

As we said in Miller, citing State ex rel. Sparrenberger v. District Court (1923), 66 Mont. 496, 214 P. 85, “the prohibited result of denying the other party access to a fair trial may be achieved by affirmatively misrepresenting facts.” Miller at 364, 616 P.2d at 318. However, we determined in Miller that the husband’s statements or concealment did not materially thwart Mrs. Miller’s ability to present her case. Miller at 365, 616 P.2d at 319.

In the case before us, Richelle had the opportunity to present her case. Gary’s statements at trial regarding the value of his partnership assets did not materially thwart Richelle’s ability to present her own evidence. Prior to the trial she was aware of the partnership between Gary and Marie Barnes, and the size of the farm/ranch operation and could have taken steps to gather the information she obtained after the final decree. We conclude that the District Court did not abuse its discretion in denying Richelle’s combined motions for a new trial.

Therefore, we affirm the judgment of the District Court.

JUSTICES HARRISON, GRAY, TRIEWEILER and HUNT concur.


author: JUSTICE HARRISON JUSTICE TRIEWEILER,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BETH DECKER, Defendant and Appellant.
    No. 91-284.
    Submitted on briefs Sept. 12, 1991.
    Decided Nov. 25, 1991.
    48 St.Rep. 1046.
    251 Mont. 339.
    828 P.2d 1342.
    For Appellant: Lawrence A. LaFountain, Lewistown.
    For Respondent: Marc Racicot, Attorney General, and Deanne L. Sandholm, Asst. Atty. General, Helena; Thomas R Meissner, County Attorney, and Monte J. Boettger, Lewistown.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Defendant and appellant, Beth Decker, was convicted of driving under the influence in the Tenth Judicial District, Fergus County, Montana. Beth Decker appeals, and we affirm.

The sole issue before this Court is whether the District Court erred in allowing into evidence testimony of a forensic scientist regarding the appellant’s blood alcohol content.

On April 12, 1990, after being notified via radio of a single car accident in Lewistown, Montana, Officer Moring of the Lewistown Police Department arrived at the scene and found the appellant, Beth Decker. She admitted to being the driver of the car. As a result of the accident, she received a split lip which needed medical attention. The officer took her to the police station since she initially refused medical attention so she could see the injury. After viewing the injury, the appellant changed her mind and desired medical treatment. While at the police station, the officer procured the necessary paperwork for a blood withdrawal since there was evidence of a possible DUI; he perceived the smell of alcohol on the appellant and in the car. He transported the appellant to the hospital and, upon arrival, the nurse on duty summoned the emergency room doctor. The officer observed the doctor’s activity and then properly administered the implied consent form. Subsequently, the officer presented the blood test request form to the nurse and remained while the nurse drew the appellant’s blood, correctly sealed the sample, and initialed the seal. The officer took possession of the sample and sent it to the Missoula Crime Lab via certified mail with a completed “alcohol analysis request form” enclosed. The results of the blood analysis revealed a blood alcohol content level higher than the legal limit.

Procedural safeguards for drawing blood for the purpose of determining alcohol content are set forth in § 61-8-404(l)(b)(iii), MCA (1989), which states that “if the test was on a blood sample, the person withdrawing the blood must have been competent to do so under 61-8-405(1).” Section 61-8-405(1), MCA (1989), provides that: “Only a physician or registered nurse or other qualified person under the supervision and direction of a physician or registered nurse acting at the request of a peace officer may withdraw blood for the purpose of determining alcoholic content.”

The issue on appeal revolves around whether “D. Hartman,” the hospital personnel who withdrew the appellant’s blood, was identifiable as a person qualified to do so.

A similar situation arose in Wyoming.

Joelson v. State (Wyo. 1984), 674 P.2d 229. In Joelson, the appellant argued that no evidence was introduced that the blood was taken by a registered nurse, physician or other qualified personnel. The nurse in Joelson properly collected the blood sample and completed paperwork which included her designation as an RN. The Wyoming court reasoned that

“The letters RN, placed in the space provided for ‘title,’ are defined as T) registered nurse 2) Royal Navy,’ Webster’s New Collegiate Dictionary (G. & C. Merriam Co. 1979). We do not believe that Theresa Hansen was indicating that she was a member of the Royal Navy ... [she] was working in the emergency room of the Campbell County Memorial Hospital, and as it is generally recognized by the majority of the people that the initials RN are an abbreviation for registered nurse, we hold that the trier of fact could believe from all the evidence that Theresa Hansen was a registered nurse.”

Joelson, 674 P.2d at 231.

The Wyoming court admitted the blood test results into evidence and stated that “the appellant introduced nothing to impeach or contradict this evidence.” Joelson, 674 P.2d at 232.

The situation in the case at bar is similar. The record indicates that the officer took the appellant to the hospital where they were greeted by a nurse. The nurse summoned the doctor and, after an examination of the appellant’s injury, a blood sample was obtained by the nurse. Proper documentation and paperwork were completed. At trial, two forms were admitted into evidence without objection. First, the blood test request form which indicated the nurse’s name as follows:

“D. Hartman
“(Physician, Registered Nurse, etc.)
“Second, the alcohol analysis request appeared as follows:
“Hartman
“(Physician, Nurse, Med. Tech)”

In Joelson, the Wyoming appellant made no objection to State’s exhibits (which are the equivalent of Montana’s blood test and alcohol analysis forms), and the Wyoming court properly admitted them into evidence under their Rule of Evidence 803(6) “Records of regularly conducted activity.” The Wyoming court stated that “the material contained in the exhibits could be accepted as true or false by the trier of fact.” Joelson, 674 P.2d at 231.

We approve and adopt the Wyoming court’s reasoning as it applies to the case at bar. The trier of fact is in the best position to examine the evidence and observe the witnesses. Here, the District Court chose to believe the information in the forms regarding the nurse and her qualifications, along with other evidence that she was a “qualified person” under Montana law. The forms were properly admitted into evidence.

The record reflects the District Court’s consideration of the qualification issue as follows:

“Court: I think there’s sufficient case made here for the qualification of the nurse. She is in the emergency room, she’s not just an LPN, or at least her drawing, the act of drawing the blood shows that she would not be simply an LPN but would be a qualified person in the circumstances to do this, so I’ll overrule the objection.”

Appellant cites our opinion in State v. McDonald as authority for her position. State v. McDonald (1985), 215 Mont. 340, 697 P.2d 1328. We do not believe that the case at bar is similar since, in the instant case, the name of the person drawing the blood appeared on two separate forms that were properly admitted into evidence. In McDonald, the name of the person who took the blood sample did not appear on any forms. The only identification of that person was by the arresting officer. We held that his testimony about the person who took the blood sample was hearsay since he merely recalled that she had a name tag that said she was a nurse. McDonald, 215 Mont. at 346, 697 P.2d at 1331.

We take this opportunity to note that the Administrative Rules cited in McDonald have been repealed. Even so, the language is not inconsistent with our holding in the instant case.

“[A] criminal defendant on a charge of driving under the influence is entitled to the procedural safeguards of the Administrative Rules of Montana. To admit evidence of blood alcohol content and a test report, the State must lay a foundation pursuant to § 61-8-404, MCA, which incorporates the ARM: (1) the laboratory analysis must be done in a laboratory qualified under the rules of the Department; (2) the report must be prepared in accordance with the rules of the Department; and (3) if a blood sampling, the person withdrawing the blood must be demonstrably qualified to do so.” [Emphasis added.] McDonald, 215 Mont. at 346, 697 P.2d at 1331-32.

Even under this standard, we still find that “D. Hartman,” the person who drew the appellant’s blood, was demonstrably qualified to do so.

Further, we believe the legislature intended to provide a safe, sanitary and controlled method of obtaining blood samples. Historical statutory revisions indicate a desire to protect citizens from being subjected to blood drawn from, for instance, a police officer in the field without proper implements or sterilization techniques.

There is substantial evidence to support the fact that there was both a nurse and doctor present at the hospital, the officer properly requested the blood sample, it was properly taken and its results indicated a criminal level of alcohol. We hold that the nurse was qualified to take the blood sample and, therefore, the testimony of the forensic scientist was properly admitted into evidence. Accordingly, we affirm the District Court’s admission of the testimony of the forensic scientist and uphold the conviction of Beth Decker.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES MCDONOUGH and WEBER concur.

JUSTICE TRIEWEILER,

dissenting.

I dissent from the opinion of the majority. The requirement that a person drawing blood possess certain qualifications before that blood can reliably be used as evidence of a motorist’s intoxication is not an inconsequential requirement.

The procedures that must necessarily be followed to assure that blood is a reliable indicator of a person’s blood alcohol content are technical and demanding. This is evident from previous rules established by the Department of Justice and from our prior case law.

In 1978, the Department of Justice enacted § 23.3.931, ARM, which set forth the following specific requirements for the withdrawal of blood:

“(l)Blood samples may be collected from living individuals only by persons authorized by law, upon written request of a peace officer. The skin at the area of puncture must be thoroughly cleansed and disinfected with an aqueous solution of non-volatile antiseptic. Alcohol of phenolic solutions may not be used as a skin antiseptic.
“(3) At least five milliliters of blood should be collected for analysis.
“(4) The blood sample must be deposited into a clean dry container, containing a solid anti-coagulant and preservative. The container should then be capped or stoppered and sealed in a mailing container with at least the following information:
“(a) Name of suspect;
“(b) Date, time and site ... of collection; and
“(c) Name or initials of persons collecting and/or sealing sample.
“(5) Sodium fluoride or its equivalent must be used as a preservative. Sodium citrate or potassium oxalate or equivalent must be used as an anti-coagulant. If no additive or additives other than those listed above are used, a comment so stating should accompany the sample. If other additives are employed, the name of the additive and its quantity should be listed.
“(6) When possible, the officer requesting blood sampling shall observe sample collection so that he or she may attest to the sample’s authenticity. The officer should then initial or mark the sample seal for further identification.”

The purpose of these procedural requirements is to assure the reliability of blood drawn for the purpose of proving a person’s intoxication. In State v. McDonald (1985), 215 Mont. 340, 697 P.2d 1328, we considered the procedure, as well as the qualifications of the person withdrawing the blood, to be so important that we reversed that defendant’s conviction where both had not been proven.

In McDonald, defendant was taken to the hospital where blood was drawn by an employee specifically identified with a tag that said “Registered Nurse.” The officer who was present at the blood drawing identified the person who drew the blood as a nurse but was unable to provide further information about her identity or qualifications. The defendant in that case, like the defendant in this case, objected to the introduction of the crime lab’s blood analysis on the grounds that insufficient foundation had been laid to establish that it had been drawn by a qualified person in a procedurally correct manner. We agreed and, in doing so, relied on § 61-8-404, MCA, which requires that “the person withdrawing the blood must have been competent to do so under § 61-8-405(1).” After citing the aforementioned departmental rules for withdrawal of blood, we also discussed the importance of the qualifications of the person withdrawing the blood. We held as follows:

“We hold that a criminal defendant on a charge of driving under the influence is entitled to the procedural safeguards of the Administrative Rules of Montana. To admit evidence of blood alcohol content and a test report, the State must lay a foundation pursuant to § 61-8-404, MCA, which incorporates the ARM: (1) the laboratory analysis must be done in a laboratory qualified under the rules of the Department; (2) the report must be prepared in accordance with the rules of the Department; and (3) if a blood sampling, the person withdrawing the blood must be demonstrably qualified to do so.” [Emphasis added.]

McDonald, 697 P.2d at 1331-32.

It is true that in 1988, prior to the date of the defendant’s conduct which is complained of in this case, the departmental rules establishing the procedure for withdrawing blood were repealed. However, the repeal of those administrative safeguards did not eliminate the requirements of §§ 61-8-404 and 405(1), MCA. If anything, the elimination of other procedural safeguards made the qualifications of the person withdrawing the blood even more important.

The requirements of § 61-8-405(1), MCA (which we previously held were a foundational requirement), are very specific. Pursuant to that section:

“Only a physician or registered nurse or other qualified person under the supervision and direction of a physician or registered nurse acting at the request of a peace officer may withdraw blood for the purpose of determining any measured amount or detected presence of alcohol in the person.”

There was absolutely no evidence in this case that the person who withdrew blood from the defendant was a physician, registered nurse, or “other qualified person under the supervision and direction” of a physician or nurse.

The majority states that after arriving at the hospital, “the officer presented the blood test request form to the nurse and remained while the nurse drew the appellant’s blood ... .” However, there was no testimony by the person who drew the blood to the effect that she was a nurse of any kind. Nor was there any effort to lay any foundation for her qualifications through the officer who presented the form to her. The majority states that:

“Here, the District Court chose to believe the information in the forms regarding the nurse and her qualifications, along with other evidence that she was a ‘qualified person’ under Montana law.”

This observation makes no sense because there was nothing in the form for the District Court to believe or disbelieve regarding the “nurse’s” qualifications. The form simply bore her signature on a line under which it stated (Physician, Registered Nurse, etc.). There is no further indication on the form whether she was a physician, registered nurse, or an etcetera. If she was an etcetera, there is no indication whether she was a lab technician, X-ray technician, practical nurse, nurse’s aid, hospital volunteer, or passerby. Nor was there any “other evidence” as referred to by the majority. The only two witnesses who testified at trial were Thomas Moring, the Highway Patrolman who arrested the defendant and Lynn Kurtz, the forensic scientist from the State Crime Lab in Missoula. Neither were asked for, nor gave any information about the “nurse’s” background, title, experience, other qualifications, or the color of her uniform. Neither identified her as a registered nurse as opposed to a licensed practical nurse. The mere fact that Officer Moring presumed she was a nurse at all was the kind of speculation that we specifically prohibited in McDonald. At least in McDonald, the person who was presumed to have been a registered nurse had a tag that said “Registered Nurse.” We concluded, however, that even that was insufficient. In this case, there is no indication that the person who withdrew the defendant’s blood had any such identification.

The majority relies on the Wyoming Supreme Court’s decision Joelson v. State (Wyo. 1984), 674 P.2d 229. However, that case is not in point. The person who withdrew the blood from the defendant in that case filled out the appropriate paperwork and identified herself as an RN. The paperwork in which she identified herself in that manner was admitted at trial without objection. That court, therefore, held that the statutory requirement that blood be withdrawn by a registered nurse had been satisfied. No such identification was provided by D. Hartman on any form that she filled out in this case. Therefore, the Wyoming court’s remarks which are cited by the majority in this case are completely irrelevant to the facts here.

It is not a significant burden on the many qualified prosecutors in this state to require that they prove that the person who drew blood from a defendant was a doctor, registered nurse, or some other qualified person acting under their supervision. The majority’s inference to the contrary ignores common practice in our district courts.

It is strange that yesterday’s foundational requirements become so quickly insignificant upon reconsideration.

The effect of today’s majority decision is to totally eliminate the statutorily-imposed requirements of §§ 61-8-404 and 405(1), MCA. From this day forward, intoxication can be proven with blood samples drawn by an etcetera.


author: JUSTICE GRAY

text:
    IN RE THE MARRIAGE OF CHRISTOPHER KEVIN McKINNON, Petitioner and Appellant, and IVY THERESE McKINNON, Petitioner and Respondent.
    No. 91-262.
    Submitted on briefs Oct. 24, 1991.
    Decided Jan. 28, 1992.
    49 St.Rep. 69.
    251 Mont. 347.
    825 P.2d 551.

      For Appellant: Timothy J. McKittrick, McKittrick Law Firm, P.C., Great Falls.
    For Respondent: Barbara Bell, Bell and Marra, Great Falls.
   JUSTICE GRAY

delivered the Opinion of the Court.

Christopher McKinnon appeals from an Order of the District Court of the Eighth Judicial District, Cascade County, granting Ivy McKinnon’s Motion for Relief from Final Judgment. We affirm in part, reverse in part and remand.

The dispositive issues on appeal, as stated by this Court, are:

I. Whether the District Court erred in concluding that § 40-6-135, MCA, relates only to relinquishments for purposes of adoption.

II. Whether the court had jurisdiction to rule on the Motion for New Trial or for Modification of Custody or for Relief from Final Judgment.

The relevant facts of this case are procedural in nature. On July 3, 1990, the appellant, Christopher McKinnon (Chris), and the respondent, Ivy McKinnon (Ivy), signed a joint petition for dissolution of their marriage. Ivy also signed a relinquishment of parental rights concerning the parties’ minor son. The action proceeded on the court’s uncontested calendar and the District Court entered a Decree of Dissolution on July 25,1990, granting sole custody of the minor child to Chris based on Ivy’s relinquishment of parental rights.

On July 31,1990, a Motion to Set Aside Judgment and Motion for New Trial were filed on Ivy’s behalf. The District Court, in an Order Clarifying Status of Motions dated December 10, 1990, determined that the motions were deemed denied by operation of law on September 14, 1990, for not having been ruled on within the time required by Rule 59, M.R.Civ.R, and that it had lost jurisdiction of the case at that time.

AMotion for New Trial or for Modification of Custody or Relief from Final Judgment was filed on Ivy’s behalf on January 25, 1991, together with accompanying affidavits. Chris responded to the legal arguments upon which the motion for new trial or for relief from judgment was based, but did not respond specifically to the motion for modification of custody or file responsive affidavits.

The District Court ruled on March 18, 1991, that the January 25 Motion for Relief from Judgment was timely, that it had continuing jurisdiction over the custody of the minor child pursuant to § 40-4-219, MCA, that the custody portion of the dissolution decree was void because it was based on Ivy’s relinquishment, and that Ivy was entitled to relief from final judgment under Rule 60(b)(4), M.R.Civ.R The court found that § 40-6-135, MCA, applies only to adoptive placement situations. A custody hearing was scheduled, but did not occur due to the filing of this appeal. The best interests of the minor child have not been determined under § 40-4-212, MCA.

I.

Whether the District Court erred in concluding that § 40-6-135, MCA, relates only to relinquishments for purposes of adoption.

Christopher McKinnon relies on § 40-6-135, MCA, as authority for the relinquishment of parental rights in this case. That reliance is misplaced. Section 40-6-135, MCA, relates by its terms to adoptions. Specifically, § 40-6-135(1), MCA, applies to legal relinquishments of parental rights in adoption situations: “Aparent or guardian who proposes to relinquish custody of a child for purposes of placing the child for adoption ... . ” (Emphasis added.) The plain meaning of the language mandates the conclusion that relinquishments authorized in § 40-6-135, MCA, relate only to adoptive situations.

Chris relies on subsections numbered (2) and (5) in the 1989 version of § 40-6-135, MCA:

“(2) Except as otherwise provided in this section, a relinquishment shall be by a separate instrument executed before a notary public.
“(5) Upon the filing of a properly and voluntarily executed relinquishment of a child by a parent or guardian, the court shall immediately issue an order terminating the rights of that parent or guardian to that child ... .”

He asserts that those subsections do not reference adoptive situations. It is a settled rule of statutory construction that legislation must be read as a whole in order to ascertain the legislative intent. State v. Magnuson (1984), 210 Mont. 401, 682 P.2d 1365. Here, legislative intent is stated clearly in the plain language of § 40-6-135(1), MCA: the relinquishments authorized in the statute pertain to adoption situations. The fact that unnecessarily repetitious and redundant language is not reiterated in every subsection does not change the clearly stated purpose of relinquishments under § 40-6-135, MCA. Therefore, the District Court’s legal conclusion is correct. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601. The statute relied on by Christopher McKinnon as authority for Ivy’s relinquishment does not apply to dissolution proceedings. We affirm the District Court’s conclusion.

II.

Whether the court had jurisdiction to rule on the Motion for New Trial or for Modification of Custody or for Relief from Final Judgment.

Ivy’s January 25, 1991, Motion was for relief from final judgment, a new trial or modification of custody. It was accompanied by affidavits stating that harmful conditions existed in the minor McKinnon’s environment. In its March 18, 1991, Order, the court concluded that under the circumstances of the case the motion had been filed within a “reasonable time” pursuant to Rule 60(b)(4), M.R.Civ.P., that the original grant of custody of the minor child was based on her relinquishment and that her relinquishment was not legally possible. Therefore, the court concluded that the original custody award was void ab initio and granted Ivy relief from the custody portion of its earlier judgment. As discussed above, the District Court was correct in its legal conclusion regarding the relinquishment. It was incorrect, however, in granting Ivy relief from judgment pursuant to Rule 60(b)(4), M.R.Civ.P.

Rule 60(b) motions are subject to the same time period for determination as Rule 59 motions for new trial or amendment of judgment; absent a ruling within 45 days, the motion is deemed denied. Rule 60(c), M.R.Civ.P. In such an event, the court loses jurisdiction. In re Marriage of Miller (1989), 238 Mont. 108, 776 P.2d 1218.

Ivy filed her motion for relief from judgment, a new trial or modification of custody on January 25, 1991. The court ruled on the motion on March 18, 1991, concluding in part that Ivy was entitled to relief from final judgment pursuant to Rule 60(b)(4), M.R.Civ.P. More than 50 days having elapsed from the filing of Ivy’s motion, the portion of the motion seeking relief from final judgment was deemed denied by operation of law; the court did not have jurisdiction of that portion of the motion at the time it issued its March 18,1991, Order. Therefore, we reverse the portions of the District Court’s Order determining the original custody award void ab initio and granting Ivy relief from final judgment under Rule 60(b)(4), M.R.Civ.P.

The District Court also premised its March 18,1991, Order on its continuing jurisdiction over custody matters and its obligation to determine the best interests of the minor child; it did not, however, state specifically that it was setting the custody hearing on the basis of Ivy’s alternative motion for modification of custody and supporting affidavits. Section 40-4-220, MCA, sets forth the requirements with which a party seeking modification of custody must comply before a court may grant a hearing on modification; those requirements are jurisdictional. Marriage of Anderson (1989), 240 Mont. 316, 320, 783 P.2d 1372, 1375.

Under the unusual circumstances of this case, the record is not clear whether the District Court found Ivy’s motion for modification and affidavits sufficient to meet the jurisdictional requirements of § 40-4-220, MCA. The court should have an opportunity to clarify whether it does, or does not, find adequate cause for a hearing on Ivy’s motion for modification under that statute, and, if so, to proceed under that statute and § 40-4-219, MCA, to determine whether modification is appropriate.

In summary, we affirm the District Court’s determination that § 40-6-135, MCA, relinquishments are not authorized in dissolution proceedings, reverse its grant of relief from final judgment pursuant to Rule 60(b)(4), M.R.Civ.P., and remand for further proceedings on the motion for modification.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

JUSTICES HARRISON, HUNT, TRIEWEILER and McDonough concur.


author: JUSTICE TRIEWEILER

text:
    FARMERS UNION MUTUAL INSURANCE COMPANY, Plaintiff and Respondent, v. GARY OAKLAND, individually and as Personal Representative of the Estate of LORETTA OAKLAND, d/b/a Oakland Holding Company, Defendants and Counterclaimants/Appellants.
    No. 91-213.
    Submitted on briefs Oct. 10, 1991.
    Decided Jan. 28, 1992.
    49 St.Rep. 72.
    251 Mont. 352.
    825 P.2d 554.

      For Appellants: James A. Poore, III, Douglas A. Buxbaum, and Patrick M. Sullivan, Poore, Roth and Robinson, P.C., Butte.
    For Respondent: James L. Jones, Dorsey and Whitney, Billings; Robert F. James, James, Gray & McCafferty, Great Falls.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

On July 20,1988, Farmers Union Mutual Insurance Company filed a declaratory judgment action against Gary and Loretta Oakland in the Thirteenth Judicial District Court in Yellowstone County. The District Court held that the insurance policy issued to the Oaklands by Farmers Union did not require Farmers Union to pay for additional costs related to the removal of materials containing asbestos during reconstruction of the insureds’ property. Gary Oakland appeals. We reverse.

The issue on appeal is whether the District Court erred in holding that a “code exclusion” clause in the insurance policy relieved Farmers Union of any obligation to pay additional costs for the removal of debris from the insured’s fire-damaged building, when the cost of removal was increased because of regulations related to the removal of materials that contain asbestos.

The Oaklands purchased the Broadwater Center, a commercial property in Billings, on November 1, 1979. The Broadwater Center was an older building, and it contained asbestos pipe insulation and floor tile. On October 1, 1986, the Oaklands purchased a fire and casualty insurance policy for the Broadwater Center from Farmers Union. On January 4, 1988, a fire damaged the insured property.

Gary Oakland immediately notified Farmers Union of the loss. Farmers Union retained an independent adjuster to handle the claim. Oakland then hired his own adjuster. The adjusters disagreed on how to obtain reconstruction bids from contractors. In addition, they disagreed about whether the “code exclusion” clause in the insurance policy relieved Farmers Union of the obligation to pay the higher costs associated with removal and disposal of debris that contained asbestos.

Consequently, in mid-February of 1988 Farmers Union decided to submit the matter to an appraiser selected by each party and an umpire selected by the appraisers. On May 15, 1988, the -umpire determined that the total loss was worth $773,020. The umpire’s award attributed $70,540 to the cost of asbestos removal.

Almost immediately a dispute arose on the question of whether the appraisers had subtracted a deduction for depreciation on certain items as required by the insurance policy. Farmers Union therefore sought a declaratory judgment regarding the asbestos and depreciation issues. The Oaklands filed a counterclaim asserting that Farmers Union had acted in bad faith by unnecessarily prolonging the adjustment process.

Both parties moved for summary judgment on the asbestos, depreciation, and bad faith issues. On January 18,1990, the District Court entered an order disposing of several pending motions. This order denied the pending summary judgment motions on the asbestos and depreciation issues. However, the court appended a memorandum to the order in which it stated:

“In connection with the asbestos issue, a question has been raised as to whether the Seventy Thousand Five Hundred Forty and No/100ths Dollars ($70,540.00) figure is the amount determined to be the costs of removing the asbestos material or is the amount in excess of what it would have cost to remove the material had it not contained asbestos. The Court has concluded [Farmers Union] is not required to pay any increased cost of repair or reconstruction by reason of the statutes and ordinances regulating asbestos and will permit a deduction from the total costs of repair or replacement of any such increased cost.”

Subsequently, the parties settled the depreciation and bad faith issues out of court, leaving only the asbestos issue for final decision. The District Court then issued a final order and judgment declaring that Farmers Union was entitled to a deduction for the increased cost of asbestos removal. This appeal is therefore limited to the asbestos issue.

According to Oakland, the materials at issue here are of two types: (1) materials containing asbestos that were directly damaged in the fire; and (2) undamaged materials containing asbestos that must be tom out in order to gain access to damaged materials. He does not seek compensation for the removal of any asbestos that it was not necessary to remove as part of the repair process.

Farmers Union bases its position on the following clauses in the insurance policy:

“HI. EXCLUSIONS
“Section I [the coverage provision] does not apply to loss or damage caused by or resulting from:
“1. Enforcement of any ordinance or law, either directly or indirectly regulating the construction, repair or demolition of buildings or structures.” [Emphasis added.] and
“Business Pac Deluxe Policy Declarations
“[Farmers Mutual] ... does insure ... [Gary and Loretta Oakland] ... to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss without allowance for any increased cost of repair or reconstruction by reason of any ordinance or law regulating construction or repair ....” [Emphasis added.]

We take judicial notice of the fact that asbestos removal is subject to regulations that increase the cost of removing and disposing of materials that contain asbestos, compared to the cost of removing and disposing of ordinary building materials.

However, the first of these two provisions is clearly inapplicable under its own terms. The asbestos regulations, which are of course a valid exercise of the government’s police power, did not “cause” or “result in” “loss or damage” to the insured property. It was the fire that caused the “loss or damage” to the insured property. Therefore, Farmers Union cannot rely upon this provision to support its claim that the cost of removing these materials is not covered by its policy.

The Supreme Court of Idaho recently reached this same conclusion in Garnett v. Transamerica Insurance Services (Idaho 1990), 800 P.2d 656. The insurance policy at issue in Garnett purported to exclude coverage for “[l]oss occasioned directly or indirectly by enforcement of any ordinance or law regulating the use, construction, repair, or demolition of buildings or structures.” Garnett, 800 P.2d at 666. The court said that:

“As we read this provision, it does not limit Transamerica’s obligation for the cost of repair or replacement of the building when a loss has occurred that is covered by the policy, but merely states that if the loss itself is caused by an ordinance or law, there is no coverage. For instance, if some safety improvement of a building to which no other loss had occurred were required by an ordinance or law, Transamerica would not be liable. However, when the cost of repairing or replacing a building that had been damaged by fire is increased by the requirements of an ordinance or law, Transamerica is not relieved of that cost.”

Garnett, 800 P.2d at 666. We agree with the Idaho decision.

Farmers Union argues that even if the increased cost of asbestos removal is not a “loss or damage,” it is certainly an “increased cost of repair or reconstruction by reason of an ordinance or law regulating construction or repair.” Oakland, on the other hand, argues that the asbestos which must be removed is “debris” and that the insurance policy affirmatively extends coverage for debris removal without qualification.

We decline to adopt Farmers Union’s interpretation of the clause in question. Interpretation of this clause is naturally controlled by its own context. The clause as a whole refers to the types of new materials with which the damaged materials must be repaired or replaced. It is utterly silent on the question of debris removal. Elsewhere, the policy affirmatively grants coverage for debris removal without qualification. Thus, Farmers Union apparently understood when it drafted the policy that repair and debris removal are separate costs, and if it intended to exclude debris removal costs related to code enforcement it could have done so.

Furthermore, coverage exclusions are subject to a rule of narrow construction. In Dautel v. United Pacific Insurance Co. (Wash. Ct. App. 1987), 740 P.2d 894, 896, for example, the court noted that “[ejxclusions from coverage are contrary to the fundamental protective purpose of an insurance policy and will, therefore, be narrowly construed.” The exclusions at issue in the case at bar only cover costs associated with “construction, repair, or demolition” and “repair or reconstruction” of the insured property. The insurance policy does not expressly exclude costs associated with the removal of debris that contains asbestos. The rule of narrow construction prevents us from expanding the plain language of these exclusions to certain types of debris, when elsewhere the policy affirmatively extends coverage for debris removal.

We conclude that the policy as drafted affirmatively extends coverage for debris removal, that the asbestos in question is “debris,” and that the policy language purporting to limit coverage for new materials required by laws and ordinances is inapplicable. Thus, we hold that the District Court erred in ruling that Farmers Union had no contractual obligation to pay for asbestos removal and that it could deduct such costs from the umpire’s award.

However, a fact issue remains regarding the amount of the costs that are recoverable. We limit our holding to the removal of fire-damaged asbestos and undamaged asbestos that must be removed in order to repair damaged materials. Farmers Union suggests that the $70,540 asbestos-removal figure used by the appraisers actually represents the cost of removing all asbestos in the building. Oakland disputes this claim. Accordingly, we remand for a specific factual determination of how much it will cost to remove (1) fire-damaged asbestos; and (2) undamaged asbestos that must be removed in order to access and repair fire-damaged materials. It is these amounts that are covered by the Farmers Union policy.

Reversed and remanded.

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