No 

No. 98-256

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 177

295 Mont. 260

983 P.2d 933

MISSOULA YWCA, 

Plaintiff and Appellant, 

vs.

ALLEN BARD, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Third Judicial District,

In and for the County of Powell,

The Honorable Ted L. Mizner, Judge presiding.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-256_(07-27-99)_Opinion.htm (1 of 10)4/9/2007 10:17:45 AM
No 

COUNSEL OF RECORD:

For Appellant:

Jon E. Ellingson (argued), Missoula, Montana

For Respondent:

R. J. "Jim" Sewell, Jr., Bruce Spencer (argued), Smith Law Firm, Helena, Montana

For Amicus:

Klaus D. Sitte (argued), Missoula, Montana (Montana Legal Services Association); Judith Wang (argued), 

Missoula, Montana (Missoula Family Violence Council)

Heard: April 12, 1999

Submitted: April 20, 1999

Decided: July 27, 1999

Filed:

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-256_(07-27-99)_Opinion.htm (2 of 10)4/9/2007 10:17:45 AM
No 

__________________________________________

Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

¶1. This action was commenced in the District Court for the Third Judicial District, 

Powell County, to collect attorney fees incurred by the now deceased Julia Marquis 

from her surviving husband, Allen Bard. The complaint alleged that the attorney fees 

were incurred for necessities of life, as defined by § 40-2-210, MCA. But the District 

Court concluded that the action was barred by our prior decision in In re Marriage 

of White (1985), 218 Mont. 343, 708 P.2d 267. The court thus dismissed the action 

pursuant to Rule 12(b)(6), M.R.Civ.P., for failure to state a claim upon which relief 

can be granted. We reverse and remand.

¶2. The sole issue on appeal is whether attorney services are a "necessary article" 

under § 40-2-210, MCA, when they are provided to a wife to obtain orders of 

protection from an abusive spouse, thereby obligating the spouse to pay the attorney 

fees so incurred.

STANDARD OF REVIEW

¶3. The issue of whether the court properly granted a Rule 12(b)(6), M.R.Civ.P., 

motion to dismiss presents a question of law. Williams v. Zortman Mining, Inc. 

(1996), 275 Mont. 510, 512, 914 P.2d 971, 972 (citation omitted). This Court reviews 

issues of law to determine whether the district court's application or interpretation of 

the law is correct. Williams, 275 Mont. at 512, 914 P.2d at 972-73 (citation omitted). 

In reviewing a district court's dismissal for failure to state a claim upon which relief 

can be granted, we will construe the complaint in the light most favorable to the 

plaintiff, and all factual allegations are taken as true. Trankel v. State, Dept. of 

Military Affairs (1997), 282 Mont. 348, 351, 938 P.2d 614, 616 (citation omitted). This 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-256_(07-27-99)_Opinion.htm (3 of 10)4/9/2007 10:17:45 AM
No 

Court will affirm the dismissal only if we find that the plaintiff is not entitled to relief 

under any set of facts which could be proven in support of the claim. Trankel, 282 

Mont. at 350-51, 938 P.2d at 616 (citation omitted).

FACTUAL AND PROCEDURAL BACKGROUND

¶4. For the reasons set forth above, we assume that all facts alleged by the plaintiff in 

support of its claim are true.

¶5. On October 31, 1996, Julia Marquis filed a petition for a temporary order of 

protection with the Powell County Justice of the Peace, in which she alleged that she 

was the victim of stalking by her husband, Allen Bard, and she believed that he 

would harm her. Her petition stated:

I have decided, because of our inability to make this marriage work, that I need time away 

from Allen. We discussed this and, because I insisted, agreed to live apart. But as the rest 

of this narrative will explain, he has done the opposite, following me, harassing me, and 

threatening me. I have told him that my feelings are dead, yet he shows up at the house the 

moment I arrive, calls me constantly, and comes to my work. Each encounter alternates 

between begging, anger, intimidation, and sometimes threats.

¶6. Julia described several terrifying incidents in which Allen, who is 6'4" and 

weighs 250 pounds, harassed and threatened her, including the following incident 

that occurred while she was waitressing at a restaurant in Ovando:

When he came back in the front door he came towards me, his face very angry, and then 

went for a patron, trying to choke him. I got in between, as did my co-worker, and we 

pushed him out the door. I stood out the door as he yelled and screamed obscenities at 

myself, my co-workers, and the patron. He called me a whore, threatened to blow the town 

apart, or kill me and anyone I might be with. Allen is big- 6'4" - 250 pounds. 

¶7. The Justice Court granted the temporary order of protection. The following day 

Julia sought the legal services of Jon E. Ellingson to assist in extending the duration 

of the order of protection and in obtaining a dissolution of her marriage. 

¶8. Julia filed her petition for dissolution in District Court on November 8, and one 

week later she petitioned the court to extend the temporary order of protection and 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-256_(07-27-99)_Opinion.htm (4 of 10)4/9/2007 10:17:45 AM
No 

set a date for a hearing. The District Court found that Julia was in danger of harm 

from Allen and thus entered a temporary order of protection prohibiting him from 

threatening or committing acts of violence towards her; from harassing or annoying 

her; and from coming within 1500 feet of her, her residence, or her place of 

employment. At the subsequent hearing, Allen appeared through his attorney and 

stipulated to an extension of the restraining order during the pendency of the 

litigation.

¶9. Four days later, on December 6, 1996, Julia died from heart failure. At the time 

of her death, Julia had incurred liability for attorney fees in the amount of $2,623.50 

together with advanced costs in the amount of $177.50. With her untimely death, the 

action for dissolution abated and was subsequently dismissed on March 3, 1997. 

¶10. On November 3, 1997, her counsel filed suit in District Court alleging that the 

attorney fees were necessities of life that Allen was obligated to pay. Allen filed a 

motion to dismiss, claiming that he had no obligation to pay them, and the District 

Court agreed. It held that according to this Court's decision in White "there are no 

set of facts under which the Plaintiff would be entitled to relief. . . ." 

¶11. Plaintiff appealed. Subsequently, all interest in the proceeds of the case was 

donated to the Missoula YWCA, which was substituted as the plaintiff and appellant 

pursuant to an order of this Court.

DISCUSSION

¶12. Are attorney services a "necessary article" under § 40-2-210, MCA, when they 

are provided to a wife to obtain orders of protection from an abusive spouse, thereby 

obligating the spouse to pay the attorney fees so incurred?

¶13. In general, a person is not liable for the debts contracted by one's spouse. 

Section 40-2-106, MCA. But there is one exception. A person is liable for the debt 

contracted by the spouse where the debt is for "necessary articles" for the husband, 

wife or minor children. Sections 40-2-106, - 205, and -210, MCA. "Necessary 

articles" is broadly defined to include:

all such goods and services as are reasonably required to provide for the health, welfare, 

comfort, and education of the married person, his spouse, and minor children, taking into 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-256_(07-27-99)_Opinion.htm (5 of 10)4/9/2007 10:17:45 AM
No 

consideration the earnings, resources, and general standard of living of such persons.

Section 40-2-210, MCA.

¶14. Allen's argument implies that "necessary articles" includes only food, clothing, 

shelter, transportation and medical care. But the definition itself is not so limited. 

Rather, the definition expansively includes "all . . . services" that are "reasonably 

required to provide for the health, welfare [and] comfort" of the spouse. Section 40-2-

210, MCA (emphasis added). When interpreting this statutory definition, this Court 

has also considered the definition of "necessaries" contained in Black's Law 

Dictionary. That definition is similarly expansive and includes "[t]hings 

indispensable, or things proper and useful, for the sustenance of human life." White, 

218 Mont. at 346, 708 P.2d at 269 (citing Black's Law Dictionary 1181 (Rev. 4th ed. 

1968)). 

¶15. We view freedom from spousal abuse to be within any reasonable definition of 

"things indispensable, or things proper and useful, for the sustenance of human life." 

Likewise, services provided to secure one's personal safety certainly protect the 

health and welfare of that person. It is difficult to imagine anything more 

fundamental to a person's health and welfare than to be free from intimidation, 

assault or even murder. And it would defy all logic to hold that although medical 

expenses incurred to treat a person after an assault are "necessary articles," services 

provided to prevent the assault are not. Similarly, what logical reason can there be 

for concluding that shelter is a necessity of life, but freedom from intrusion into that 

shelter by a stalker is not? We find none. Based upon the broad statutory definition, 

we conclude that legal services provided to obtain an order of protection may be a 

necessary article, rendering the spouse obligated to pay for such services.

¶16. Notwithstanding the expansive definition of "necessary articles" contained 

within the statute itself, Allen contends that this Court interpreted that definition 

more narrowly in 1985 when we rendered our decision in White. According to him, 

we held that attorney fees are never "necessities of life," and in so doing we 

overruled our earlier decision in McAlear v. Unemployment Compensation 

Commission (1965), 145 Mont. 458, 405 P.2d 219. We disagree with Allen's reading of 

White.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-256_(07-27-99)_Opinion.htm (6 of 10)4/9/2007 10:17:45 AM
No 

¶17. Our limited case authority on this subject is consistent with our conclusion that 

Allen may be held responsible for Julia's attorney fees. We first addressed whether 

attorney fees may be necessities of life in McAlear. In that case, the attorney 

attempted to collect fees from the Unemployment Compensation Commission that 

were incurred by three people who had been wrongfully denied unemployment 

compensation. The attorney sought recovery of the fees from the Commission when 

he learned that the Commission had paid the individuals their benefits without 

withholding any amounts for attorney fees. McAlear, 145 Mont. at 461, 405 P.2d at 

220-21. This Court rejected his claim, because the attorney had failed to notify the 

Commission that he represented his clients on a contingent fee basis, and he had 

failed to request notification from the Commission when the decision was made so 

that he could contact his clients and make arrangement for payment. McAlear, 145 

Mont. at 464-65, 405 P.2d at 223.

¶18. But before reaching this decision, the Court stated that attorney fees could be 

considered "necessaries" within the meaning of R.C.M. 1947, 87-143, if there was, in 

fact, a necessity for such services. The Court explained:

[W]e are faced with another question of whether or not legal fees are "necessaries." This 

court must conclude that in instances, such as this, where the services rendered restored 

three men to the rolls of the Unemployment Compensation Commission, set aside a oneyear purge from those rolls of the Unemployment Compensation Commission, and cleared 

their names of fraud that in such instance attorney's fees most certainly should be 

considered as a debt incurred for "necessaries". . . . What are "necessaries" depends upon 

the facts of each case, and stated another way, whether legal services are to be considered 

"necessaries" depends upon whether there was a necessity for such services. 

McAlear, 145 Mont. at 462-63, 405 P.2d at 222 (internal citations omitted). 

¶19. We had no occasion to address this issue again until two decades later when we 

decided White. In that case, Susan White reported to the welfare department that 

her husband Wilburn had sexually molested their foster child. During the course of 

the ensuing criminal trial, Wilburn incurred attorney fees in the amount of $10,000. 

The jury found him not guilty. White, 218 Mont. at 344, 708 P.2d at 268. 

Subsequently, during the course of Susan and Wilburn's dissolution proceedings, 

Wilburn contended that Susan was responsible for a share of his criminal attorney 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-256_(07-27-99)_Opinion.htm (7 of 10)4/9/2007 10:17:45 AM
No 

fees as a "necessary" within the meaning of § 40-2-106, MCA. We held that "[a]

ttorney's fees incurred by one spouse to defend himself against child abuse charges 

are not necessaries within the meaning of § 40-2-106, MCA." White, 218 Mont. at 

347, 708 P.2d at 269. 

¶20. It is this holding upon which Allen heavily relies in arguing that attorney 

services provided to obtain orders of protection do not constitute necessaries of life. 

But in our view, the reach of White does not extend so far. The facts in White were 

unique and differ profoundly from the facts in this case. The language of our decision 

clearly limits White's holding to cases where the spouse has incurred attorney fees to 

defend against criminal child abuse charges. In contrast, at issue in this case is 

services provided to protect a spouse from violence. And as elaborated earlier, 

protection from intimidation, assault and murder falls squarely within the definition 

of "necessary articles."

¶21. Allen next argues that attorney fees are not necessities of life, because other 

remedies are available by which the plaintiff can recover the attorney fees from the 

spouse. Specifically, he notes that (1) § 40-4-110, MCA, authorizes an award in a 

dissolution action; (2) § 72-3-502, MCA, allows a creditor to be appointed personal 

representative of an estate; and (3) § 72-6-215, MCA, allows a creditor the right to 

seek compensation from joint tenancy property when other assets are unavailable. 

Allen also points to the general rule that where one statute deals with a subject in 

general terms and another deals with the same subject in a specific way, the special 

statute will prevail over the general one. He contends that § 40-4-110, MCA, is the 

more specific statute which allows a party to recover attorney fees, and that this 

Court should not fashion a new remedy.

¶22. We reject Allen's contentions for several reasons. First, there is no guarantee 

that any of these statutes would provide a remedy in every case as Allen suggests. 

With regard to § 40-4-110, MCA, the award of attorney fees under this section is 

discretionary with the court, and in making the award the court is directed to 

consider the financial resources of the parties. If the wife has sufficient resources, 

then the putative spouse might not be obligated to pay the fees. Moreover, in a case 

such as this where the dissolution action abated with the death of Julia, it is 

questionable whether the district court would retain authority to award any fees. 

Finally, that statute makes no provision for an award of fees where the victim 

reconciles with the estranged spouse and chooses not to request the fees. Unlike §§ 40-

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-256_(07-27-99)_Opinion.htm (8 of 10)4/9/2007 10:17:45 AM
No 

2-106, -205, and -210, MCA, the statute provides no mechanism whereby an attorney 

can bring an action as a creditor in his or her own right against the putative spouse. 

With regard to § 72-3-502, MCA, and § 72-6-215, MCA, those statutes may or may 

not provide a remedy in this case, but in many cases where an estate has no assets or 

where there is no jointly held property, the remedies would be unavailing. 

¶23. But more importantly, nothing suggests that simply because there may be other 

remedies, those remedies are exclusive. By concluding that attorney services in cases 

such as this may constitute necessities of life, this Court is not creating a new remedy 

not already provided by the legislature. Rather, we are simply applying the broad 

and express language of the statute which defines "necessary articles." And the 

legislature stated that "necessary articles" include "all . . . services as are reasonably 

required to provide for the health, welfare, [and] comfort" of the married person. 

Section 40-2-210, MCA (emphasis added). 

¶24. Based upon all the foregoing we hold that attorney services may be a "necessary 

article" under § 40-2-210, MCA, when they are provided to a wife to obtain orders of 

protection from an abusive spouse, thereby obligating the spouse to pay the attorney 

fees so incurred. As we stated over three decades ago in McAlear, however, before a 

court may award attorney fees under this section, the court must examine whether 

such services are a necessity in each particular case. In this case, the District Court 

erroneously held that "there are no set of facts under which the Plaintiff would be 

entitled to relief. . . ." We reverse this holding. The District Court is directed to 

conduct further proceedings to determine whether in this particular case the legal 

services provided on behalf of Julia to obtain an order of protection were necessary.

¶25. Reversed and remanded for further proceedings consistent with this opinion. 

/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ J. A. TURNAGE

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-256_(07-27-99)_Opinion.htm (9 of 10)4/9/2007 10:17:45 AM
No 

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-256_(07-27-99)_Opinion.htm (10 of 10)4/9/2007 10:17:45 AM