No. 14582 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

LYLE A. MASSARO, 

Plaintiff and Respondent, 

VS . 

DORETTA JANE DUNHAM, 

Defendant and Appellant. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellant: , , , 

I 

A1 Frost, Legal Services, Bozeman, Montana 

For Respondent: 

McCabe and Weingartner, Helena, Montana 

Submitted on briefs: November 7, 1979 

Decided: NOY 2 8 1m 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

Doretta J. Dunham appeals from that portion of the findings 

of fact, conclusions of law and judgment entered by the District 

Court, Eighteenth Judicial District, Gallatin County, denying 

her recovery of alleged child support arrearages. 

Doretta and Lyle A. Massaro were formerly husband and wife. 

Their marriage was dissolved on December 23, 1966, in Sheridan, 

Wyoming. 

Pursuant to the marriage dissolution decree and the separation 

agreement incorporated therein, Doretta was given custody of the 

parties' two minor children, Sherri and Lyle R. "Ricky" Massaro. 

Lyle was obligated to pay $100 per month child support and any 

medical, dental, drug and doctor bi-11 .i.ncurred by Doretta in 

caring for the children when the cost of such bills exceeded 

twenty-five dollars in a given month. 

The evidence in the record of child support payments is 

sketchy. Lyle was enlisted in the Armed Forces for eight months 

in 1967 and 1968. A $125 per month allotment was sent to Doretta 

during this period. In 1969, Lyle furnished $2,000 to Shelby 

Trailer Court Sales in Casper, Wyoming, for the purchase of 

a mobile home by Doretta, Lyle has also given gifts of cash and 

other personalty directly to the children. 

Doretta was a patient at the Wyoming State Mental Hospital 

for three months in 1974 and six months in 1975. During this 

period, Lyle had custody of Sherri from May 1975 to August 1975 

and custody of Ricky from March 1974 to August 1974 and from 

January 1975 to August 1975. 

On November 8, 1976, the District Court, Gallatin County, 

entered an ex parte order granting the exclusive custody of 

the children to Lyle with Doretta to have reasonable visitation 

privileges. 
On January 25, 1978, Doretta filed a petition for 

modification of visitation rights and complaint for child 

support arrearages. Doretta alleged Lyle owed $9,600 back 

child support as of the date of her complaint. 

Lyle filed his response and counterclaim on March 17, 1978. 

Lyle generally denied all claims of Dorettafs petition, sought 

reaffirmation of the prior ex parte custody order and requested 

an order permanently restraining Doretta from harassing the 

Massaro family. 

Lyle moved for a continuance on May 30, 1978, one day 

prior to the original trial date. The ground of the motion was 

that Sherri, an essential witness, had run away from the 

Massaro household and could not be located. The motion was 

granted, and the cause was reset for trial on June 12, 1978. 

The District Court entered its findings of fact and 

conclusions of law on July 5, 1978. Specifically, the District 

Court concluded Doretta had failed to prove the amount of back 

child support claimed as owing to her by Lyle. 

On August 16, 1978, Doretta filed a motion to amend the 

findings of fact and conclusions of law or, in the alternative, 

for a new trial. The motion was denied. 

Doretta next applied to the District Court for an order 

permitting her to appeal in forma pauperis. The petition was 

denied. However, we granted Doretta leave to appeal in 

forma pauperis on November 22, 1978. 

Doretta raises three issues upon this appeal: 

1. Did the District Court properly apply the rules 

regarding burden of proof and the burden of producing evidence? 

2. Is there sufficient evidence to support the District 

Court's judgment concerning delinquent child support? 

3. Does the District Court judgment violate section 

40-4-208, MCA, prohibiting retroactive modification of child 

support payments? 

-3- 
Having found an abuse of the discovery rules, we will 

not reach these issues. - See, Rule 2, Mont.R.App.Civ.P. 

On April 6, 1978, Doretta served Lyle with written 

interrogatories, a request to produce documents and requests 

for admission. Generally, Doretta sought any evidence that 

Lyle might use at trial to establish due payment of child 

support. 

In her requests for admission, Doretta asked Lyle to 

admit he owed an obligation to pay $100 per month child support 

pursuant to the decree of dissolution of marriage and the 

separation agreement incorporated therein. Doretta also 

requested Lyle to admit Doretta had been granted reasonable 

visitation privileges pursuant to the District Court's ex 

parte order. 

On April 12, 1978, Lyle requested additional time to 

respond to the discovery. Doretta agreed to the extension 

in a letter dated April 17, 1978. 

On May 31, 1978, Doretta's counsel by telephone requested 

a response to the discovery. Lyle's counsel gave assurances 

that a response would be forthcoming. 

Lyle's counsel never responded to the written interrogatories or the request for production of documents. The 

reason given at trial was that counsel's secretary was on 

vacation and the response to discovery had been overlooked. 

On May 31, 1978, Lyle filed objections to the requests 

for admissions. The ground of the objection was that Doretta 

had failed to attach or serve copies of the marriage dissolution 

decree, separation agreement or ex parte order to the requests 

for admissions, and therefore, Lyle specifically denied the 

authenticity and truth of any provision contained therein. 
Yet, at trial when Doretta moved for the admission of 

certified copies of the requested documents, Lyle's counsel 

responded, "I think they're part of the record already, Your 

Honor, and don't need to be admitted specifically." 

At the trial, Doretta objected to and sought restriction 

of the expected proof by Lyle concerning visitation and 

delinquent child support. The ground of the objection was 

failure to respond to discovery. The motion was taken under 

advisement and later denied. 

Lyle asserts his failure to respond to discovery is not 

objectionable since Doretta failed to move for an order compelling 

discovery. We do not agree. 

The District Court has the inherent discretionary power 

to control discovery. That power is based on the District 

Court's authority to control trial administration. - See, State 

v. Mecca Twin Theater & Film Exchange, Inc. (1973), 82 Wash.2d 87, 

507 P.2d 1165, 1167. In controlling discovery, the District 

Court must regulate traffic to insure a fair trial to all 

concerned, neither according one party an unfair advantage 

nor placing the other party at a disadvantage. State v. Boehme 

(1967), 71 Wash.2d 6, 430 P.2d 527, 534. 

We will reverse the District Court only when its judgment 

may materially affect the substantial rights of the appellant 

and allow the possibility of a miscarriage of justice. Wolfe 

v. Northern Pacific Railway Co. (1966), 147 Mont. 29, 41, 

409 P.2d 528, 534. We find such a situation here. 

The purpose of discovery is to promote the ascertainment 

of truth and the ultimate disposition of the lawsuit in 

accordance therewith. Discovery fulfills this purpose by 

assuring the mutual knowledge of all relevant facts gathered 

by both parties which are essential to proper litigation. 

-5- 
~ickman v. Taylor (1947), 329 U.S. 495, 507, 67 S.Ct. 385, 

392, 91 L.Ed. 451, 460. 

In the instant case, Lyle's counsel gave assurances that 

a response to discovery would be forthcoming and then never 

responded. Considering Doretta's past mental condition, her 

counsel was correct in expecting Lyle to be the only party 

with accurate records of past child support payments. However, 

due to the failure to respond to discovery, Doretta's counsel 

had no opportunity to inspect and prepare for any proof of 

past child support payments. Thus, the District Court failed 

to regulate the discovery process and accorded an unfair 

advantage to Lyle. 

Lyle's answers to the requests for admission likewise 

do not comport with the good faith requirement inherent in 

the rules of discovery. 

Rule 36(a), Mont.R.Civ.P., does require the attachment 

of a copy of a document when the genuineness of that document 

is the matter sought to be admitted. The purpose of this 

requirement is to give the responding party an opportunity 

to compare the copy with the original to determine its validity. 

This purpose would not be served by giving credence to ~yle's 

objections. 

Rule 36(a), Mont.R.Civ.P., requires a denial of a request 

for admissions to fairly meet the substance of the requested 

admission. The responder must admit or deny with particularity 

if the truth can be ascertained by reasonable inquiry. 2(~) 

Barron & Holtzoff, Federal Practice and Procedure, 5834, at 

513-15. An evasive answer is to be treated as a failure to 

answer, an admission. Rule 37 (a) (3) , Mont. R.Civ.P. 

Lyle's answers should have been treated as admissions since 

they were evasive and did not comport with the purposes of Rule 

36 and discovery in general. 
Thus, when Lyle refused to admit the matter set forth 

in Doretta's request, her counsel was put to the trouble and 

expense of procuring certified documents of instruments already 

in the possession of Lyle, the contents of which should have 

been well-known to him. We cannot condone such evasiveness, 

nor overlook the fact that opposing counsel was forced to 

accumulate documents for evidence which should not have been 

in dispute. 

The failure of Lyle to respond to the interrogatories 

prejudiced Doretta's counsel in preparing for trial. Certainly 

the sketchy evidence of support payments in the record, 

which in our opinion is insufficient to deny a money judgment 

in some amount to Doretta is the result of the evasiveness 

of Lyle's counsel in properly responding to the interrogatories. 

That portion of the District Court's judgment pertaining 

to delinquent child support is reversed. The cause is 

remanded for further proceedings in accordance with this 

opinion. This may or may not include further discovery. 

We Concur: 

/" Chief Justice 

0