No. 83-96 

IN TEIE SUPREME COURT OF THE STATE OF MOPJTANA 

1984 

LIMA SCHOOL DISTRICT NO. 12 

and ELEPIENTARY SCHOOL DISTRICT 

OF BEAVERHEAD COUNTY, MONTANA, 

Plaintiff and Appellant, 

KENNETH SIMONSEN AND ANN 

SIMONSEN , 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, 

The Honorable Frank E. Blair, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

P1.G. Gilbert, 111, Dillon, Montana 

For Respondents: 

Thomas A. Dooling, Dillon, Montana 

For Amicus Curiae: 

Richard P. Bartos, Office of Public Instruction, 

Helena, Montana 

-- 

Submitted on Briefs: March 1, 1984 

Decided: May 24, 1984 

Filed: 

2 4 !984 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

The Lima School District No. 12 filed suit against 

Kenneth and Ann Simonsen in 1979 to recover money paid to the 

Simonsens under a transportation contract. The Simonsens 

counterclaimed alleging damages resulting from prior acts of 

the School District and the filina of the suit. The 

Beaverhead County District Court denied the claim of the 

School District and awarded the defendants $5,000 on their 

counterclaim. The Lima School District appeals this 

judgment. 

The defendants in this action own an isolated ranch in 

the Centennial Valley thirty-five miles east of Lima, Montana. This ranch is located in the Lima School District and 

Beaverhead County. The present controversy arose after the 

Simonsens applied for and received $814.50 from the Lima 

School District for transporting their two children during 

the 1.976-1977 school year. At issue is whether the 

Simonsens' ra.nch in the Centennial Valley is their legal 

residence. 

Ann Simonsen was raised on the Centennial property. 

She attended the nearby Doyle School which was closed by the 

Lima School District for lack of school-age children in 1965. 

The school. has not been reopened since tha.t date. 

The Simonsens received their interest in the ranch from 

Ann Simonsen's mother in 1967. The Simonsens do not live on 

the property year round; snow closes the access roads in 

winter and the county makes no effort to keep the roads open 

due to the area's sparse population. 

The condition of the ranch, though not truly at issue 

here, was described various]-y in the proceeding below. Even 
if the roads were kept open in winter, the property does not 

provide what many would consider a suitable residence. The 

ranch is not serviced by electricity. The Simonsens, during 

their summer stays at the ranch have centered their living 

around a self-contained camp trailer. There is a cabin on the 

property, although the condition of this cabin was the subject of conflicting testimony at trial. 

The Simonsens maintain the Centennial property is their 

home. Ann Simonsen testified that she has never left the 

ranch without the intention to return. Ken Simonsen testified that he has lived and worked in Butte in order to subsidize the ranch and has continued to work on the ranch 

whenever he was able to do so. The Simonsens have run cattle 

on the ranch in the summers although this was never a large 

operation. 

In June 1976 Ann Simonsen applied to the Lima School 

District for funds to defray the cost of school transportation for her children. The Simonsens did not live on their 

Centennial property that winter and school year. Winter 

closures of roads effectively barred the family from living 

on their property and sending their children to the nearest 

open school of the Lima School District. During the school 

year in question, 1976-1977, and subsequent years, Ann 

Simonsen lived with her children in Sheridan, Montana, in 

Madison County. Sheridan is located thirty-seven road miles 

northeast of Dillon, the county seat of Beaverhead County. 

Therefore, a transportation contract was entered into in 

Beaverhead County, the professed county of residence for the 

family, and the children were sent to school in Sheridan 

within Madison County. It was Ann Simonsen's belief that 

money received from the Lima School District could be used to 
defray the costs of boarding and sending her children to 

school outside the District. 

After the 1976-1977 school year, the Lima School District paid Ann Simonsen $814.50 under the transportation 

contract executed the previous summer. The School District 

alleges that this money was paid under the mistaken belief 

that the Simonsens were legal residents of Beaverhead County. 

Ann Simonsen applied for a second transportation contract preceding the school year of 1977-1978. The application for this contract was denied August 25, 1977, by the 

Transportation Committee of Beaverhead County on the grounds 

that Ann Simonsen was not a legal resident of the countlr. 

Ann Simonsen appealed the denial of the 1977-1978 

transportation contract application to the Beaverhead County 

Transportation Committee. This appeal was filed on June 22, 

1978. The appeal was denied by the Beaverhead County Superintendent on June 28, 1978. This decision was subsequently 

appealed by Ann Simonsen on March 5, 1979, to the State 

Superintendent of Public Instruction. 

While this case was being litigated through the administrative appeal process, a complaint was filed by the Lima 

School District and its attorney, W. G. Gilbert 111, in 

Beaverhead County District Court. The School District alleged in its complaint that $814.50 in transporta.tion money 

had been paid to the Simonsens in 1977 by mistake. It dernanded judgment against the defendants for that amount plus 

costs. 

This case was docketed by the Beaverhead County District Court as Cause No. 9285. The Simonsens answered the 

complaint and cross-complained alleging $10,000 in damages 

due to the School District's denial of the transportation 
contract, failure to provide a school and filing of its 

complaint prior to exhaustion of the administrative appeal. 

Trial was held without a jury May 20, 1980. Findings 

of fact and conclusions of law were entered July 29, 1980. 

District Judge Frank Blair found that the Simonsens were 

residents of Beaverhead County and they were entitled to a 

transportation contract for the school year 1976-1977. After 

finding for the defendants on the complaint, Judge Blair 

noted that the plaintiff School District failed to present a 

defense to the cross-complaint and entered judgment in favor 

of the Simonsens, the amount of damages to be determined at a 

later hearing. Such hearing was held July 6, 1982 and a 

damage award of $5,000 was made to the Simonsens in a final 

judgment entered December 28, 1982. This judgment is the 

subject of this appeal. 

While Cause No. 9285 was being litigated, the administrative appeal of the denial of the 1977-1978 transportation 

contract progressed. On September 4, 1981, after Cause No. 

9285 had been heard and findings entered, the State 

Superintendent of Public Instruction, Ed Argenbright, 

affirmed the Reaverhead County Transportation Committee's 

order denying the 1977-1978 transportation contract. The 

Transportation Committee had found previously that Ann 

Simonsen was not a resident of Beaverhead County. The State 

Superintendent of Public Instruction in his decision 

demonstrates the mistaken belief that the Simonsens were the 

plaintiffs in the prior civil action, Cause No. 9285. He 

notes that they had failed to exhaust their administrative 

remedies prior to bringing that action. The Simonsens were, 

of course, defendants in Cause 9285. Under his mistaken 

belief the State Superintendent of Public Instruction ruled 
the prior Beaverhead County District Court order of Judge 

Blair was not controlling in his review of the matter. 

A petition for review of the final decision of Ed 

Argenbright was then filed by Ann Simonsen in the Beaverhead 

County District Court. This second case dealing with the 

issue of the Simonsens' residency was docketed as Cause No. 

9714. The case was decided April 13, 1983 and Judge Mark 

Sullivan affirmed the September 4, 1981 decision of the 

Superintendent of Public Instruction. An attempt to appeal 

the judgment of Cause No. 9714 was untimely and this Court 

denied the Simonsens' motion to file a notice of appeal nunc 

pro tunc on October 24, 1983. 

Summarizing the a.bove discussion, we are presented with 

two lawsuits. Both suits hinged on the question of the 

Simonsens' legal residency. The two results are diametrically opposed. However, the first suit, docketed Cause No. 

9285, addresses residency during the 1976-1977 school year 

for which the transportation contract was paid. The counterclaim of Cause No. 9285 and the second suit, Cause No. 9714, 

addresses the school year of 1977-1978 for which a future 

contract was denied. Cause No. 9285 is currently before this 

Court while Cause No. 9714 is not. 

I 

The first issue to be decided is whether the Beaverhead 

County District Court erred when it found the Simonsens were 

residents of the county. We preface our discussion of the 

residency question by noting that technically we are only 

reviewing the trial court's residency finding as it relates 

to the 1976-1977 school year transportation contract. The 

decision of the administrative agency and its subsequent 
affirmance in Beaverhead County District Court Cause No. 9714 

concerned residency for purposes of the 1977-1978 school year 

transporation contract application. Since the decision in 

Cause No. 9714 was later in time than the decision of Judge 

Blair which we are reviewing, questions of res judicata are 

not presented 

The parties basically agree on the appropriate law that 

should be applied to the question of residency. Section 

20-10-121 (I-) , MCA, provides that trustees of a school district have a duty to provide transportation for all eligible 

transportees whenever transporation is provided for any 

transportee. The Lima School District has such a duty. This 

obligation by the terms of subparagraph two of section 

20-10-121, MCA, can be fulfilled by the District entering a 

contract and reimbursing the parent for individually transporting the pupil. Such is the statutory basis of the transportation contract at issue here. The method by which the 

parent is reimbursed by contract may include (1) palring the 

parent or guardian for individually transporting the pupil; 

(2) paying room and board reimbursements; (3) providing 

supervised correspondence study; or (4) providing supervised 

home study. Section 20-20-121 (3) (b) , MCA. The statute 

further recognizes a practice whereby a district may furnish 

transportation to an eligible transportee who has been granted permission to attend school outside of the district. 

Section 20-10-121 (I), MCA. 

The statute that authorizes the execution of 

transportation contracts arguably infers that school 

districts must give prior permission to those pupils who want 

to attend school outside of their home district. The statute 

reads : "The trustees of any district may furnish 
tra-nsportation to an eligible transportee who attends a 

school of the district or has been granted permission to 

attend a school outside of the district." Section 

20-10-121(1), MCA. Neither party has raised the question of 

the applicability of this aspect of the statute to the facts 

of this case. Therefore, the issue will not be reached by 

this Court. 

It is clear that the statutory scheme provides a flexible procedure whereby a parent of an eligible transportee can 

be reimbursed for the incidental costs of transporting and 

educating children. The statutory scheme has wide application to the large number of families who live in remote areas 

of our state. The threshold qualification is simply that the 

child be an eligible transportee. 

Section 20-10-101(2), MCA, defines eligible transportee 

as a pupil who resides with a parent or guardian who 

"maintains a legal residence within the boundaries of the 

d-istrict furnishing the transportation regardless of where 

the eligible transportee actually lives when attending 

school.." Initially, then, it can be stated that if Ann 

Simonsen maintained a residence during the 1976-1977 school 

year within the Lima School District, then her children were 

eligible transportees and the transportation contract was 

properly granted and paid. 

In determining residence within Montana certain statutory rules are set forth in section 1-1-215, MCA. The applicability of this particular statute to the question of 

residency for the school transportation contracts is buttressed by the mandate of another statute. Section 

20-10-105, MCA, states that when the residence of an eligible 
transportee is a matter of controversy in an issue before the 

Board of Trustees, the County Transportation Committee, or 

the Superintendent of Public Instruction, residence shall be 

determined on the basis of section 1-1-215, MCA. 

Section 1-1-21.5, MCA, provides that certain rules are 

to observed in determining the place of residence. In relevant part the rules state that there can be only one residence and " [il t is the place where one remains when not 

called elsewhere for labor or other special or temporary 

purpose and to which he returns in seasons of repose." 

Subsequent case law has held that these rules are only 

quidel-ines for interpretation and not a definition. Every 

case must stand upon its own facts and each decision will 

". . . be the result of a more or less arbitrary application 

of the rules of law to the facts presented." McCarthy v. 

Montana Power Company (1963), 143 Mont. 134, 140, 387 P.2d 

438, 442, quoting from Carwil-e v. Jones (1909), 38 Mont. 590, 

602, 101 P. 153, 158. See also Kunesh v. City of Great Falls 

(1957), 132 Mont. 285, 317 P.2d 297. 

Our decision today can rise above a mere "arbitrary 

application" of the law to the facts. The circumstances 

presented by the Simonsens' use of their Centennial ranch 

seem well within the scope of the statutory guidelines. We 

are presented with a situation where the Simonsens would 

remain on their ranch but for the pressing needs of earning 

an income and educating their children. Winter road closures 

and distance from a job market effectively bar the family 

from living year round on the ranch. This is precisely the 

type of situation the legisl-ature must have had in mind when 

it enacted the quidel-ines of residency whereby a residence 

may be a place that one leaves for labor or other special or 
temporary purpose. Educating one's children is certainly a 

special and temporary purpose within the meaning of the 

statute. 

The Superintendent of Public Instruction in his decision and order dated September 4, 1981, found the Simonsens 

did not return to their ranch in seasons of repose. He found 

the Simonsens lived in and returned to Sheridan, Montana. 

The Superintendent did not specify what summers he was referring to in his decision. Nothing in the record before us 

would indicate that the Simonsens did not spend at least part 

of the summer of 1976 on their property. The season of 

repose for a rural family faced with the demands of earning 

an income and educating their children may be short indeed. 

The School District argued that the Simonsens were not 

registered voters of Beaverhead County. However, the 

Simonsens were not registered voters of Madison County either. The mere fact that a husband and wife choose not to 

vote does not preclude them from obtaining legal residency 

and receiving its ancillary benefits. 

Similarly, the School District emphasized the Simonsens 

paid no utility bills within Beaverhead County. Testimony 

was introduced about the "uninhabitable" nature of the ranch 

and its dwelling structures. 

Such considerations that focus on the particular lifestyle a coupl-e has adopted have little relevancy to the 

question of their legal residence. If this were not the 

case, a family could be denied certain privileges of residency, such as a school transportation contract, simply because 

they decided to live without or could not afford certain 

comforts. 
The Simonsens' unqualified intent is to maintain their 

Centennial Valley ranch as their residence. No other home 

has been claimed as their residence. We recognize that 

intentions and declarations alone do not control the determination of residency. Veseth v. Veseth (1966), 1.47 Mont. 169, 

410 P. 2d 930. However, here there is more than mere intent. 

The Simonsen ranch has been owned and operated continuously 

by Ann Simonsen, and her family before her, for over thirty 

years. The Simonsens pay real estate taxes to Beaverhead 

County and a self-contained camp trailer licensed in the 

county has been maintained on the property. 

A determination of residency in a situation like the 

present one cannot be made by mere application of mechanical 

rules. In accordance with this Court's decisions in McCarthy 

and Kunesh, each case must stand on its own facts. Findings 

of fact were entered by Judge Blair that support his conclusion that the Simonsens are residents of Beaverhead County. 

In reviewing findings of fact in a civil action tried without 

a jury, this Court may not substitute its judgment in place 

of the trier of facts. Our function is confined to determining whether there is substantial credible evidence to support 

the court's findings. We view the evidence "in a light most 

favorable to the prevailing party, recognizing that substantial evidence may be weak or conflicting with other evidence 

yet still support the findings." Lacey v. Herndon (Mont. 

1983), 668 P.2d 251, 255, 40 St.Rep. 1375, 1380. 

In light of the purpose for which the Simonsens left 

their Centennial property, their continuous intention to 

maintain the ranch as their residence and the payment of 

Reaverhead County property taxes, we hold there was substan- 
tial evidence from which the District Court could. conclude 

the Simonsens were residents of Reaverhead County. 

Finding the Simonsens residents of Beaverhead County, 

it follows that the children were eligible transportees and 

the transportation contract for 1976-1977 was properly granted and paid. 

The District Court awa-rded the Simonsens five thousand 

dollars for emotional damages on their counterclaim. The 

counterclaim alleged wrongful denial of the 1977-1979 school 

transportation contracts, failure to provide a school or 

passable roads, abuse of process, and failure to allow them 

to exhaust their administrative remedies. These allegations 

were denied by the School District in their responsive 

pleading. At trial however, the plaintiff School District 

chose not to present a defense to the Simonsens' 

counterclaim. The amount of damages is not an issue, only 

the School District's liability therefor. 

Where a defendant counterclaims for damages due to the 

wrongful acts of the plaintiff, the defendant has the burden 

of proving the counterclaim. J.I. Case Threshing Mach. Co. 

v. Hamilton (1918), 55 Mont. 276, 176 P. 152; Murphy v. 

Cooper (1910), 41 Mont. 72, 108 P. 576. Once the defendant 

bearing the burden of proof has made a prima facie showing, 

the burden of going forward with the evidence shifts to the 

opposing party. See Duke City Lumber Co. v. New Mexico 

Environmental Imp. Bd. (1980), 95 N.M. 401, 622 P.2d 709. 

We have reviewed the pleadings, answers to requests for 

admissions, interrogatories and trial transcript and find the 
Simonsens satisfied their burden of proof. Sufficient evidence was before the trial judge for him to conclude that the 

School District wrongfully denied the Simonsens' transportation contract application for 1977-1978. We uphold the 

damage award on this basis. We find the School District and 

county have no sta.tutory duty to provide either a school or 

passable roads for one family residing in an isolated valley. 

Nor do we find that the evidence submitted supports a cause 

of action for abuse of process. See Brault v. Smith (Mont. 

1984) I P.2d , 41 St.Rep. 527. 

The School District argues before this Court that the 

counterclaim is barred by the doctrine of sovereign immunity. 

This issue was not raised in the pleadings or otherwise at 

trial. It need not be considered by the Supreme Court. 

Huggans v. Weer (Mont. 1980), 615 P.2d 922, 925, 37 St.Rep. 

1512, 1515. The School District itself initiated this lawsuit. It would be especially inequitable to allow the state 

to bring an action for payment by mistake and vest them with 

immunity from suit in related matters. The better rule is to 

recognize that whenever the state brings an equitable action 

it waives any applicable sovereignty and opens the door to a 

defense or counterclaim germane to the matter in controversy. 

See People v. Barenfeld (1962), 203 Cal.App.2d 166, 21 

Cal.Rptr. 501. 

Unlawful acts that result in detriment to a party 

provide a right to recovery of money damages in our state. 

S27-1-202, MCA. Denial of transportation money to an 

eligible transportee of a school district is such an unlawful 

act. There is no doubt that the Simonsens suffered detriment 

as a result of this denial. Not only did they suffer the 

pecuniary loss of the withheld transportation monies, but 
they expended considerable time and emotional energy in 

defending against the School District's suit to recover the 

monies already paid. 

We note that this lawsuit was filed despite the county 

attorney's knowledge of the pending administrative appeal 

concerning the issue of the Simonsens' residency. In the 

words of amicus State Superintendent of Public Instruction, 

the School. District "jumped the gun" and filed a compl-aint 

before the administrative appeal process was complete. 

Neither the ends of justice nor the peace of mind of the 

Simonsens were served by such action. 

For the wrongful denial of the transportation contract 

appl-icatj-on and the cavalier treatment of the Simonsens by 

the School District, the trial court properly found damages 

in the amount of $5,000 plus costs. 

The judgment of the district court is affirmed. 

We concur: