No. 90-371 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

LEONARD F. THOMAS, 

Plaintiff and Appellant, 

-vsDONNA E. HALE, 

Defendant and Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Dorothy M. McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Leonard F. Thomas, Pro Se, Helena, Montana 

For Respondent: 

James R. Halverson, Esq., Attorney at Law, ~illings, 

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Submitted on Briefs: November 15, 1990 

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W -L ak- 2 Decided: December 13, 1990 

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Justice John Conway Harrison delivered the Opinion of the Court. 

The District Court, in and for the First Judicial District, 

Lewis and Clark County, entered summary judgment in defendant's 

favor. Plaintiff appeals and we affirm. 

On appeal, Thomas has enumerated ten issues for review. Many 

of these issues overlap, some are not briefed and still others are 

not dispositive of the case. Therefore, we restate the issues as 

follows: 

1. Whether the District Court erred in granting summary 

judgment in Hale's favor on the issue of constructive fraud. 

2. Whether the District Court erred in granting summary 

judgment in Hale's favor on the issue of visitation interference. 

On August 31, 1989, Leonard Thomas (Thomas) sued Donna L. Hale 

(Hale) alleging fraud and visitation interference. Thomas filed 

this suit as a result of Hale's February 22, 1989 expert testimony 

in a separate dissolution proceeding between Thomas and his exwife Nancy Thomas Erler in which Thomas sought to amend the 

dissolution decree regarding Thomas' visitation rights with R., 

their daughter. Hale is R.Is counselor and, in that capacity, Hale 

gave opinions on visitation during the dissolution proceeding. 

Specifically, Hale testified that R.'s school performance had 

declined since the time that Thomas had reinitiated visitation with 

R. following an eight-year absence. Thereafter, on February 27, 

1989, the court amended its previous order by increasing Thomas' 

summer visitation rights from one week to two weeks and restricting 
overnight visits for a period of five months. 

Following the February 27, 1989 order, Thomas filed three 

motions with the court alleging that Hale's testimony regarding 

R.'s school performance was erroneous and asked for a rehearing. 

Thereafter, by agreement of the parties, the venue of the Thomas 

v. Thomas case was changed to Lewis and Clark County. A hearing 

was held on Thomast motions beginning on October 19, 1989, and 

continuing on October 23, 1989. At that hearing, testimony was 

presented by R.s1 teachers on the issue of R.'s school performance 

which corroborated Hale's previous expert testimony which Thomas 

disputed. Thomas' motions and the hearings which followed 

culminated in the District Court's Findings of Fact, Conclusions 

of Law and Order dated January 5, 1990. The District Court 

specifically found that Rita Bertelson, R.'s teacher for the 1988- 

89 school year, testified that R. was having difficulty in school 

and was often upset. The District Court vacated the two previous 

orders and awarded Thomas visitation rights with R. Itone day each 

week for two and one-half hours after school and shall further have 

visitation one weekend day, two times each month, from 9: 00 a.m. 

until 5:00 p.m." The court also stated it would review the matter 

in 120 days to determine if visitation should be extended. 

Meanwhile, on August 31, 1989, as a result of the February 

27, 1989 order which prompted Thomas' motion for a rehearing, 

Thomas also filed the instant case in which he contended the order 

was ttadversevt tohim and was improperly founded on Hale's allegedly 
perjured testimony regarding R.'s school performance and that, 

therefore, Hale was liable for constructive fraud and visitation 

interference. The parties submitted briefs and argued, and on June 

28, 1990 the District Court issued its final order granting summary 

judgment on all issues in Hale's favor. From this order Thomas 

appeals. We affirm. Additional facts pertaining to each issue 

will be discussed as necessary. 

The first issue for review is whether the District Court 

properly granted summary judgment in Hale's favor on the issue of 

constructive fraud. 

Summary judgment should be granted if the moving party 

successfully carries its burden to establish that there is no 

genuine issue of material fact and the moving party is entitled to 

judgment as a matter of law. Rule 56(c), M.R.Civ.P. To satisfy 

its burden of proof, the movant must provide the court with 

evidence which clearly indicates what the truth is, and which 

excludes any real doubt as to the existence of a genuine issue of 

material fact. Van Uden v. Hendricksen (1980) , 189 Mont. 164, 167, 

615 P.2d 220, 222. Once the movant has discharged this burden of 

proof, the party opposing the matter must come forward with 

substantial evidence raising a genuine issue of material fact. 

Rule 56(e), M.R.Civ.P. ; Riley v. Carl (1981), 191 Mont. 128, 622 

P.2d 228. Further, the non-moving party must set forth specific 

facts and cannot simply rely upon their pleadings, nor upon 

speculative, fanciful, or conclusory statements. Simmons v. 
Jenkins (1988), 230 Mont. 429, 432, 750 P.2d 1067, 1069. Then, 

applying these standards of review, this Court will not reverse a 

district courtts summary adjudication unless such order is clearly 

erroneous resulting in an abuse of discretion. Walker v. Larson 

(1986), 223 Mont. 333, 335, 727 P.2d 1321, 1322-23. 

Section 28-2-406, MCA, defines constructive fraud as: 

(1) any breach of duty which, without an 

actually fraudulent intent, gains an advantage 

to the person in fault or anyone claiming 

under him by misleading another to his 

prejudice or to the prejudice of anyone 

claiming under him; or 

(2) any such act or omission as the law 

especially declares to be fraudulent, without 

respect to actual fraud. 

In the lower court Thomas argued that Hale committed 

constructive fraud because she allegedly misrepresented to the 

court the facts of R.'s school performance while testifying in the 

capacity as R. Is social worker at a February 22, 1989 hearing. 

Thomas attempted to satisfy the first element of constructive fraud 

by arguing that this alleged misrepresentation constituted a breach 

of a legal duty which Hale owed Thomas. The lower court granted 

summary judgment on this issue in favor of Hale. 

Now Thomas argues that summary judgment was not proper because 

there existed a genuine issue of a material fact regarding Hale's 

alleged misrepresentation. Here Thomas has concluded, based on 

his own speculation and opinion rather than substantial objective 

evidence contained in the record, that Halets February 22, 1989 
testimony was untrue. Thomas1 speculation, in and of itself, is 

not enough to carry the burden required in order to preclude 

summary judgment. 

On the other hand, we find that Hale has satisfied her burden 

of proof as required by Rule 56 (c) , M.R.Civ.P. A review of the 

record shows that Hale s testimony that R. s grades had dropped 

was corroborated by R., herself, and later by R. Is grade school 

teacher as well as by an affidavit from R.'s mother. The District 

Court found that Halets testimony regarding R.Is school performance 

was not perjured and that;therefore, no cause of action existed. 

Since these findings are supported by the record, we adopt them. 

Therefore, we find that no genuine issue of material fact exists, 

and that Hale was entitled to judgment as a matter of law. As 

such, we hold that the District Court properly granted summary 

judgment in Halets favor on the issue of constructive fraud. 

The last issue is whether the District Court properly granted 

summary judgment in Halets favor on the issue of visitation 

interference. 

Thomas argues that Hale aided and assisted R.'s mother Nancy 

in attempting to prevent, obstruct, and frustrate Thomast 

visitation rights. Thcmas bases his argument, again, on 

allegations that Halets testimony was perjured. 

Section 45-5-631, MCA, makes visitation interference a crime. 

That section states in pertinent part: "(1) A person who has legal 

custody of a minor child commits the offense of visitation 
interference if he knowingly or purposely prevents, obstructs, or 

frustrates the visitation rights of a person entitled to visitation 

under an existing court order.I1 Thomas urges that a civil cause 

of action exists for visitation interference and that Hale is 

liable. The pleadings and evidence in the record fail to 

demonstrate any act committed by Hale that could be attributed to 

visitation interference. The facts are clear. Hale was hired to 

counsel R. Hale testified in court as to her observations and 

professional opinions. Thomas1 mere allegations, absent any 

substantiation by objective evidence, that Hale lied and 

collaborated with Nancy, without more, do not support a cause of 

action for visitation interference. Thomas had ample opportunity 

at the hearing to cross-examine Hale and present contrary evidence 

which might have precluded summary judgment but chose not to do so. 

Furthermore, Hale1s testimony supported continued visitation by 

Thomas subject to a temporary restriction. Therefore, we hold that 

Hale was entitled to summary judgment on the issue of visitation 

interference. The District Court is hereby affirmed. 

Sanctions 

Thomas1 parental and visitation rights have been the subject 

of at least five separate legal actions or proceedings within the 

last two years. These issues originally arose in the dissolution 

proceeding between Thomas and his ex-wife Nancy in which Thomas 

sought to amend the dissolution decree regarding visitation rights. 
Then came the case initiated by Nancy and her ex-husband, Mark 

Erler, in an attempt to terminate Thomast parental rights and to 

establish the relationship of parent and child between Erler and 

R. In the third action, Thomas sued Nancy and Mark and their 

attorney for malicious prosecution and abuse of process in having 

brought the adoption action. Next came the action Thomas initiated 

against Hale alleging constructive fraud and visitation 

interference stemming from her testimony at a hearing held in the 

dissolution action. The fifth and last proceeding is the appeal 

now before this Court. Throughout the course of these numerous 

proceedings Nancy was represented by counsel while Thomas primarily 

appeared pro se. All but one of these proceedings were initiated 

by Thomas. Thomas claims that his motives for initiating these 

court proceedings were to establish and foster a loving parentchild relationship with R., his daughter. Ironically, these 

proceedings have created an environment of hatred and has caused 

more grief and heartache than any tender-aged child, such as R., 

should ever have to endure. Each of these proceedings has caused 

unnecessary distress both emotionally as well as financially on 

behalf of all parties involved. This in turn has had a profound 

adverse effect on R.'s well-being. We wish to put an end to 

Thomast abuse of the judicial system. 

As we have previously stated, ItIt is important for the sake 

of the litigants and for the judicial system that litigation will 

at some time be finally ended. It Lussy v. Dye (1985) , 215 Mont. 91, 
93, 695 P.2d 465, 466. When an appeal, such as this one, is taken 

without substantial or reasonable grounds, we conclude that 

sanctions are appropriate. Searight v. Cimino (1989), 238 Mont. 

218, 223, 777 P.2d 335, 337. Pursuant to Rule 32, M.R.App.P., we 

therefore impose damages on Leonard F. Thomas in the amount of $250 

to be paid to the District Court. 

I We concur: .I 

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