No

No. 98-267

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 243N

NANCY L. MILES,

Petitioner and Respondent, 

v.

CHARLES D. BLUE, 

Respondent and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable John W. Larson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Laurence J. Ginnings, Missoula, Montana

For Respondent:

Paulette Ferguson, Missoula, Montana

Submitted on Briefs: February 4, 1999

Decided: October 14, 1999

Filed:

__________________________________________

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Clerk

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

¶1.Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal 

Operating Rules, the following decision shall not be cited as precedent but shall be 

filed as a public document with the Clerk of the Supreme Court and shall be 

reported by case title, Supreme Court cause number and result to the State Reporter 

Publishing Company and to West Group in the quarterly table of noncitable cases 

issued by this Court. 

¶2.Appellant Charles D. Blue appeals from the Findings of Fact, Conclusions of Law 

and Final Judgment of the Fourth Judicial District Court, Missoula County, dividing 

property between Appellant and Respondent, Nancy L. Miles and assessing 

Appellant attorney’s fees and costs. We affirm in part and reverse in part.

¶3.Appellant raises ten issues and argues eight of them on appeal. Appellant asks this 

Court to reverse the District Court on the grounds that its Findings of Fact are not 

supported by substantial evidence, and its Conclusions of Law are incorrect.

¶4.We restate the issues as follows:

I. Was there substantial evidence to support the District Court’s Findings of Fact?

II. Did the District Court err in assessing Appellant attorney’s fees and excess costs? 

III. Did the District Court err in making the existing temporary order of protection 

between the parties permanent? 

FACTUAL AND PROCEDURAL HISTORY

¶5.Appellant and Respondent carried on a relationship over a period of 

approximately three years. At the beginning of the relationship, Appellant lived on 

ranch property located on Harper’s Bridge Road in Missoula, Montana, where he 

had lived for approximately 25 years. Appellant also conducted ranching operations 

and operated two businesses on the property. 

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¶6.Appellant receives social security benefits as a result of a broken leg in 1993 which 

eventually led to the amputation of his foot in 1997. The medical bills arising out of 

Appellant’s medical condition resulted in his incurring a large amount of debt. 

¶7.During the parties’ relationship, Appellant transferred the title of two mobile 

home trailers, a 1972 Ford pickup which had been converted into a welding truck, a 

1976 horse trailer, a 1979 Chevrolet van, a 1978 Hammond boat and 1978 boat 

trailer to Respondent. Appellant owned all items transferred to Respondent prior to 

their relationship. Title to the ranch property where Appellant has lived is held by 

his brother, son, and daughter. 

¶8.For a period of approximately a year-and-a-half near the beginning of their 

relationship, Respondent and Appellant lived together in a house in Missoula owned 

by Respondent. They later decided to purchase a triple-wide Marlette trailer in order 

to live on the ranch property. Because Appellant’s credit was poor, Respondent 

purchased the Marlette trailer on an installment contract financed by Green Tree 

Financial Services Corporation (Green Tree). Appellant traded in his 1976 

Broadmore trailer as a $10,000 down payment and Respondent paid a $1,000 cash 

down payment on the new Marlette trailer. Respondent held the title solely in her 

name and was the sole obligee on the Green Tree contract. 

¶9.Appellant made two payments and Respondent made six payments on the 

Marlette trailer. Green Tree then repossessed the Marlette trailer due to 

nonpayment.

¶10.The District Court awarded Respondent ownership of the two rental mobile 

homes, the 1972 Ford pickup and welding equipment, the 1979 Chevrolet van, the 

1978 boat and boat trailer, the horse trailer, and four horses. The District Court 

ordered Appellant to pay Respondent a total rent payment he has collected since 

May 19, 1997, and to pay Respondent’s reasonable attorney’s fees, excess costs, and 

expenses incurred as a result of his vexatious actions in this matter.

STANDARD OF REVIEW

¶11.We review a district court's findings of fact to determine whether they are 

clearly erroneous. State v. Wooster, 1999 MT 22, ¶ 2, 293 Mont. 195, ¶ 2, 974 P.2d 

640, ¶ 2 (citing Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 

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P.2d 1285, 1287). We review a district court's conclusions of law to determine 

whether the interpretation is correct. Cenex Pipeline L.L.C. v. Fly Creek Angus, Inc., 

1998 MT 334, ¶ 22 , 292 Mont. 300, ¶ 22, 971 P.2d 781, ¶ 22 (citing Carbon County v. 

Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686).

DISCUSSION

¶12.The bases of Appellant’s arguments in this appeal are essentially the same; that 

the District Court failed to make findings which adequately address the factual 

disputes in this case and that the District Court’s Conclusions of Law are not 

supported by the record.

¶13.This Court has adopted a three-part test to determine whether a district court's 

finding of fact is clearly erroneous. "A finding of fact is clearly erroneous if it is not 

supported by substantial evidence, if the district court misapprehended the effect of 

the evidence, or if, after reviewing the record, this Court is left with a definite and 

firm conviction that a mistake has been made." Matter of Estate of Hunsaker, 1998 

Mont. 279, ¶ 26, 291 Mont. 412, ¶ 26, 968 P.2d 281, ¶ 26 (citing DeSaye, 250 Mont. at 

323, 820 P.2d at 1287). 

I. Is there substantial evidence to support the District Court’s Findings of Fact?

¶14.The District Court found that Appellant had gifted certain property to 

Respondent and therefore she should now be allowed to retain ownership of it. The 

Court based its finding on the following facts; 1) Appellant transferred his property 

to Respondent with no evidence other than his testimony which indicated 

Respondent would return it. Respondent paid to have the titles transferred into her 

name and testified that there was no agreement that she would return the property; 

2) although Appellant testified that he had given certain horses to a third party in 

order to secure a debt, the District Court found that such testimony was not credible 

and that Appellant had instead gifted the horses to Respondent and her children.

¶15.When determining whether substantial evidence exists, this Court views the 

evidence in the light most favorable to the prevailing party. Rocky Mtn. v. Pierce 

Flooring (1997), 286 Mont 282, 295, 951 P.2d 1326, 1334.

¶16.Appellant argues the parties agreed Respondent would transfer the property 

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back to him upon his request. Respondent claims there was no such agreement. It is 

the duty of the trial judge to resolve conflicting evidence and his findings will not be 

disturbed on appeal where they are based on substantial though conflicting evidence, 

unless there is a clear preponderance of evidence against such findings. See Perusich 

v. Meier (1987), 229 Mont. 458, 462, 747 P.2d 857, 859.

¶17.Upon reviewing the record and transcript, we are convinced that the District 

Court carefully considered the evidence before it in order to come to its decision in a 

factually complex case. We conclude that the facts above provide substantial 

evidence to support the District Court’s finding that Appellant gifted his titled 

property to Respondent. Appellant, who attempted to avoid his creditors by 

transferring title of his property to Respondent, without any written agreement of its 

return, may not now lay claim to the gifted property.

¶18.In addition to its findings that Appellant had gifted Respondent the titled 

property, the Court found that Respondent should be allowed to keep certain horses 

Appellant had gifted to her. Appellant argues the Court’s finding was clearly 

erroneous, particularly regarding a certain horse, "Britches." Respondent stated in 

her Response to Motion for Temporary Restraining Order that she had removed 

three horses from the ranch property. At that time, she made no mention of the 

horse, "Britches." In was not until trial that her daughter, Brandy, testified 

"Britches" was given to her by Appellant. We conclude that the District Court’s 

finding that allows Appellant to keep the horse known as "Britches", is not 

supported by substantial evidence and is therefore clearly erroneous. We reverse the 

District Court to the extent it awarded Respondent possession of the horse, 

"Britches."

¶19.The District Court’s Judgment awarded Respondent ownership of "all real and 

personal property currently in her possession." At trial, Appellant introduced a list 

of his personal property which was missing from the ranch property. This property 

included a television and entertainment center, which he testified that he had bought 

with cash. The District Court made no finding that Appellant’s testimony on this 

particular issue was not credible. When questioned on the issue of Appellant’s 

personal property, Respondent testified that she was willing to return any of 

Appellant’s personal property in her possession. Despite this evidence that 

Respondent retained possession of some of Appellant’s personal property, the 

District Court failed to make any findings of fact on this issue.

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¶20.In light of Appellant’s uncontroverted testimony regarding his ownership of the 

television and entertainment center together with Respondent’s testimony that she 

was willing to return any of Respondent’s personal property in her possession, the 

District Court’s order granting Respondent "all... personal property currently in her 

possession", was an abuse of discretion. We reverse the District Court’s award of the 

entertainment center and 27" Sharp television set to Respondent, based on 

Appellant’s uncontroverted testimony that they belong to him.

¶21.In addition to dividing property between Appellant and Respondent, the District 

Court found that Appellant should make payments on the Green Tree contract and 

pay Respondent the money he had obtained from the rental of the two trailers. The 

Court based its finding on Appellant’s taking money from the rental of the two 

trailers for his personal use, even though he had previously gifted the trailers to 

Respondent, and despite the District Court’s order to use the money to pay on the 

Green Tree contract. The Court additionally found that Appellant’s refusal to make 

payments on the Green Tree contract resulted in the Marlette trailer being 

repossessed. 

¶22.Appellant argues that because he was not listed as an obligee on the contract, he 

should not be required to make payments to Green Tree. The Court based its finding 

that Appellant should make payments on the contract upon the testimony of the 

parties. Respondent testified that Appellant had promised to contribute the income 

from the rental trailers for payments on the Marlette Trailer because she could not 

afford to make the payments on her home in Missoula and on the Marlette trailer 

simultaneously. Appellant admitted he had collected money from the rental trailers, 

but had not applied the money to the Green Tree contract. Appellant also testified 

that he was unaware the District Court had previously ordered him to make 

payments on the contract.

¶23.The District Court found that Appellant’s testimony regarding his lack of 

knowledge of the Court’s order that he make payments on the Green Tree contract 

was not credible given the clarity and the frequency of the Court’s direction to him. 

"The credibility and weight of witnesses is not for this Court to determine. This is a 

primary function of a trial judge sitting without a jury; it is of special consequence 

where the evidence is conflicting." Cameron v. Cameron (1978), 179 Mont. 219, 227, 

587 P.2d 939, 944. See Guardianship of Mowrer, 1999 MT 73, 979 P.2d 156, 56 St.Rep. 

300.

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¶24.Upon review of the record, we conclude that the District Court’s findings that 

Appellant should pay on the Green Tree contract and pay Respondent back rental 

money he has received on the two trailers are supported by substantial evidence. 

II. Did the District Court err in awarding Respondent her reasonable attorney’s fees, 

excess costs, and expenses incurred as a result of Appellant’s actions?

¶25.The District Court found that many of Appellant’s actions were "calculated to 

multiply the proceedings in this case unreasonably and vexatiously." Although the 

District Court’s order does not indicate the statutory basis for its decision, we 

conclude that the Court awarded Respondent her reasonable attorney’s fees, excess 

costs, and expenses pursuant to § 37-61-421, MCA. The statute provides that "[a]n 

attorney or party to any court proceeding who, in the determination of the court, 

multiplies the proceedings in any case unreasonably and vexatiously may be required 

by the court to satisfy personally the excess costs, expenses, and attorney fees 

reasonably incurred because of such conduct." Section 37-61-421, MCA (emphasis 

added). 

¶26.The District Court based its conclusion that Appellant should pay Respondent’s 

attorney’s fees, excess costs and expenses on the following facts; 1) Appellant’s 

failure to comply with the Court’s order that he pay on the Green Tree contract; 2) 

Appellant’s failure to follow the Court’s order that he not live in the Marlette trailer; 

and 3) Appellant’s failure to obey the Court’s order that he pay to Respondent’s 

attorney the sum of $504.04 prior to his moving into the Marlette trailer in 

December, 1997. Appellant argues the District Court erred in awarding Respondent 

her attorney’s fees and claims the record is sufficient to show the District Court’s 

award of attorney’s fees under § 37-61-421, MCA, is completely inappropriate. 

¶27.We have upheld a trial court’s award of attorney’s fees and costs when a party 

disregarded a court’s order and his conduct was unreasonable and vexatious. In re 

Marriage of Rager (1994), 263 Mont. 361, 366, 868 P.2d 625, 628. In Rager, a 

dissolution action, the court scheduled the trial date several months in advance. After 

the court denied the husband’s motion to continue the trial date, the husband failed 

to appear at the time scheduled for trial. He also failed to provide the court and 

opposing party with discovery responses. While the court’s findings and conclusions 

did not indicate the basis for awarding attorney’s fees, we concluded there that it 

could have relied on § 37-61-421, MCA, to support its award due to the husband’s 

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conduct which multiplied the litigation in that case. Rager, 263 Mont. at 366, 828 

P.2d at 628. 

¶28.This Court’s function is not to substitute its judgment for the trier of fact. See 

Cenex Pipeline, ¶ 31, DeSaye, 250 Mont. at 324, 820 P.2d at 1287. The language of § 

37-61-421, MCA, clearly leaves the awarding of attorney’s fees and excess costs to the 

district court’s discretion. Appellant’s failure to follow the Court’s orders has 

prolonged the outcome and raised the cost of this action while increasing 

Respondent’s debt. The District Court’s Order comes as close as possible to making 

the Respondent whole after she has refinanced her home and incurred a large 

amount of debt based on Appellant’s assurance that he would aid her in making the 

payments on the Green Tree contract. Given the foregoing, we cannot conclude that 

the District Court abused its discretion in ordering Appellant to pay Respondent’s 

reasonable attorney’s fees, excess costs and expenses incurred as a result of 

Appellant’s unreasonable and vexatious actions in this matter between these parties.

¶29.However, the District Court failed to make any findings of fact to support its 

conclusion of law awarding Respondent "additional costs which may be incurred in 

her case against Lever Brothers." Although it is unclear from the record, it appears 

the Lever Brothers suit is a personal injury action currently pending for an injury 

received by Respondent at her workplace. The transcript does not show what, if any, 

connection the Lever Brothers suit has to the instant proceeding between the parties. 

As a result, the District Court’s award to Respondent of additional costs in her case 

against Lever Brothers was an abuse of discretion. We reverse the District Court’s 

award on this issue.

III. Did the District Court err in making the existing temporary order of protection 

between the parties permanent? 

¶30.In its Conclusions of Law, the District Court found there was a preponderance of 

the evidence to make permanent an existing temporary order of protection, which 

arose from Appellant’s physical attack on Respondent and her 13-year old son. We 

review the District Court’s conclusions of law to determine whether the 

interpretation is correct. Cenex Pipeline ¶ 22. Section 40-15-204, MCA, provides;

[t]he court may, on the basis of the respondent’s history of violence, the severity of 

the offense at issue, and the evidence presented at the hearing, determine that to 

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avoid further injury or harm, the petitioner needs permanent protection. The court 

may order that the order of protection remain in effect permanently.

Section 40-15-204, MCA.

¶31.As Appellant states in his brief; 

there is no question that the parties to this lawsuit went through a tumultuous 

separation. Likewise, there is no question that on May 19, 1997, the parties were 

involved in a domestic incident that involved an inappropriate level of violence. 

¶32.Appellant argues the District Court failed to make any specific findings about 

any future danger posed by Appellant to Respondent, but rather "simply found that 

Appellant had assaulted Respondent and her son on May 19, 1997." The decision to 

make permanent the temporary order of protection is for the District Court to 

determine and we will not overturn it absent an abuse of discretion. Appellant raises 

no evidence showing the District Court’s decision is such an abuse. 

¶33.In light of the foregoing, we hold that with the exception of the horse known as 

"Britches," the television and entertainment center, and the award of excess costs to 

Respondent in her action against Lever Brothers, the District Court’s Findings of 

Fact are not clearly erroneous and its Conclusions of Law are correct. The 

remainder of the District Court’s award was within its discretion in granting relief to 

Respondent.

¶34The remainder of the issues Appellant raises relate to whether the District 

Court’s Findings of Fact are supported by substantial evidence and whether the 

District Court’s Conclusions of Law are correct. Consistent with our above holding, 

we need not address piecemeal each issue Appellant raises on appeal.

¶35.Affirmed in part and reversed in part.

/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ J. A. TURNAGE

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/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER 

/S/ KARLA M. GRAY

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