No. 93-350 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

IN RE THE MARRIAGE OF 

JUDITH A. BONAMARTE, 

Petitioner and Respondent, 

-vMARK J. BONAMARTE, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Donald E. White, Bozeman, Montana 

For Respondent: 

Marcelle C. Quist, Quist Law Office, Bozeman, 

Montana 

Submitted on Briefs: November 5, 1993 

JAN ,~. 4: g'j4 Decided: January 4, 1994 

Filed: 

G1.i . .? Siir"r?EiriE COURT 

SiriYE OF IUION'I'ANA 
Justice James C. Nelson delivered the Opinion of the Court. 

This is an appeal from an Eighteenth Judicial District Court, 

Gallatin County, decision in a dissolution action. We reverse and 

remand for a new trial. 

The dispositive issue on appeal is whether the petitioner was 

properly allowed to testify by telephone, over the objection of the 

respondent, at the hearing on the merits. 

The petitioner, Judith Spillane (f/k/a Judith Bonamarte - 

Judith) and the respondent, Mark Bonamarte, (Mark) were married on 

April 29, 1990, in New Jersey but separated in June of 1991 when 

Judith obtained a temporary restraining order alleging physical and 

emotional abuse and threats of violence by Mark. Judith filed a 

petition for dissolution in July of 1991, and moved to New Jersey 

the following month, at which time she was six months pregnant. 

There is one child of the marriage, Quentin Christopher 

Spillane (Quentin), born on November 18, 1991. Quentin has resided 

with his mother in New Jersey at all times. Mark continues to 

reside in Montana. The parties have agreed that Mark can exercise 

supervised visitation with Quentin in the state of New Jersey. 

This dissolution action came before the Eighteenth Judicial 

District Court on February 4, 1993, but a portion of the trial was 

postponed until February 19, 1993, when the trial court decided 

that Judith could testify from New Jersey via the telephone. The 

telephonic testimony occurred on February 19 over Mark's objection. 

On March 22, 1993, the trial court issued its decision awarding 

sole custody of Quentin to Judith and ordering Mark to pay $310.59 

2 
per month for child support, plus arrearages. The court also 

concluded that Mark could not require that Quentin use his last 

name, Bonamarte, instead of Judith's last name, Spillane. 

Judith continues to fear Mark and for this reason, as well as 

the expense of traveling and her inability to find adequate child 

care for Quentin if she traveled to Montana, she made the request 

to testify by telephone at the hearing on the merits. It is upon 

the issue of the District Court's allowing her telephonic testimony 

that the disposition of this case rests. 

Our standard of review relating to discretionary court rulings 

is whether the court abused its discretion. Steer Inc. v. 

Department of Revenue (lWO), 245 Mont. 470, 475, 803 P.2d 601, 

604. 

Mark states that the hearing was originally scheduled for 

February 4, 1993, but when Judith did not appear, the court 

continued the matter until February 19, 1993, when it allowed 

Judith to testify by telephone from New Jersey over Mark's 

objection. He argues that Judith was not placed under oath by a 

person authorized to administer oaths but that she was merely 

introduced by someone who claimed to be Judith's supervisor and 

stated that she knew Judith. At that time, the Court administered 

the oath and Judith testified. Mark also reminds this Court that 

it was Judith who chose Montana as the forum for the dissolution. 

Mark also argues that Judith was unable to testify as to 

matters that required documentary evidence to be considered by the 

court involving the parties1 income, assets and debts. He states 
that his counsel's cross-examination of Judith concerning the 

parties' accounts was difficult because the documents being 

discussed were not available for her perusal in New Jersey. He 

states that he could not fully cross-examine Judith because the 

testimony was by telephone. 

Finally, Mark argues that "(Rule 611(e)), [M.R.Evid.], make[s] 

it absolutely clear that a party in all court proceedings (civil 

included) has a right to confrontation of witnesses and that a 

witness can only be heard in the presence of the Court and 

parties." He concludes that "unless other arrangements had been 

previously made (such as a prior deposition) there was without 

question, a clear violation of the rule. The only remedy at this 

time would be to return the case for a new trial." 

Judith counters that she was afraid of Mark because of past 

domestic abuse and therefore did not want to return to Montana to 

testify. Also, she contends that she could not afford the expense 

of traveling to Montana nor could she find child care for her son 

and that for these reasons, she wished to testify by telephone from 

New Jersey, her current home. 

Judith asserts that she did testify in the "presence" of her 

husband and that she was subject to examination by all parties to 

the action. Further, Mark did not dispute that it was Judith who 

testified over the telephone. Moreover, Rule 611(e) allows for 

exceptions to the rule, this case falls within those exceptions and 

the court has discretion to decide whether to permit telephonic 

testimony. Finally, Judith maintains that if the decision to allow 
telephonic testimony is error, it is harmless error because it did 

not affect the husband's substantial rights. 

Factually, this is a difficult case. It is hard to fault the 

~istrict Judge who was obviously trying to make the best of a 

difficult situation and to accommodate Judith's concerns and the 

logistical and financial problems associated with her personal 

appearance at trial. Given the law, however, we must, 

nevertheless, conclude that the trial court abused its discretion 

when it allowed Judith to testify by telephone over objection in 

lieu of personally appearing in court at the hearing on the merits. 

This error denied Mark a meaningful opportunity to confront the 

witness, Judith, and to conduct a proper cross-examination. This 

is more than harmless error and warrants reversal and remand for a 

new trial. 

Discussion 

Requiring a witness to testify personally at trial serves a 

number of important policies and purposes. A witness' personal 

appearance in court: 

1. assists the trier of fact in evaluating the 

witness' credibility by allowing his or her 

demeanor to be observed firsthand; 

2. helps establish the identity of the witness; 

3. impresses upon the witness, the seriousness of 

the occasion; 

4. assures that the witness is not being coached 

or influenced during testimony; 

5. assures that the witness is not referring to 

documents improperly; and 

6. in cases where required, provides for the 

right of confrontation of witnesses. 

See Weber, Permissibilitv of Testimonv bv Telephone in State Trial, 

85 ALR4th 476, 481. We agree that these are sound considerations 
for requiring, except under specific circumstances within the 

parameters of our procedural rules and applicable statutes, that 

witnesses testify in person at trial. 

In particular, we note that the right of confrontation long 

provided in all criminal cases, is also required in civil cases in 

Montana under Rule 611(e) M.R.Evid. Rule 611, M.R.Evid., is 

primarily based on the similar federal rule of evidence. However, 

Montana's subsection (e), is original and provides: 

Confrontation. Except as otherwise provided by 

constitution, statute, these rules, or other rules 

applicable to the courts of this state, at the trial of 

an action, a witness can be heard only in the presence 

and subject to the examination of all the parties to the 

action, if they choose to attend and examine. 

Rule 611(e), M.R.Evid. The importance in Montana of the 

requirement that a witness testify at trial in the presence of all 

parties is evidenced by the inclusion of subsection (e) in our 

adoption of Rule 611, M.R.Evid. The reasoning behind Montana's 

addition of subsection (e) is illustrated in Coy v. Iowa (1988), 

487 U.S. 1012, 1019-1020, 108 S.Ct. 2798, 101 L.Ed.2d 857. 

(Citations omitted.) 

The perception that confrontation is essential to 

fairness has persisted over the centuries because there 

is much truth to it. A witness "may feel quite 

differently when he has to repeat his story looking at 

the man whom he will harm greatly by distorting or 

mistaking the facts. He can now understand what sort of 

human being that man is.tt It is always more difficult to 

tell a lie about a person "to his face" than "behind his 

back." In the former context, even if the lie is told, 

it will often be told less convincingly. The 

Confrontation Clause does not, of course, compel the 

witness to fix his eyes upon the defendant; he may 

studiously look elsewhere, but the trier of fact will 

draw its own conclusions. Thus the right to face-to-face 
confrontation serves much the same purpose as a less 

explicit component of the Confrontation Clause that we 

have had more frequent occasion to discuss-the right to 

cross-examine the accuser: both llensur[e]the integrity of 

the factfinding process." 

Although Coy is a criminal case and applies to a 

constitutional protection, the principles behind the right to 

confront witnesses are applicable to civil cases in Montana, as 

well, and that right is guaranteed in Rule 611 (e), M.R.Evid. The 

integrity of the factfinding process at trial is undermined where 

the parties do not have the opportunity to confront each other or 

the witnesses, where the finder of fact does not have the 

opportunity to observe the parties and the witnesses and where the 

opposing party cannot effectively cross-examine the other party or 

the witnesses. 

If the phrase "a witness can be heard only in the presence and 

subject to the examination of all the parties.. .I1 is to have any 

meaning, then, in the absence of a specific rule or statutory 

exception to the contrary, the witness must be physically present 

in the courtroom to testify personally at trial unless all parties 

and the court agree to a different method of examination which 

protects the parties1 rights of confrontation and cross-examination 

and, at the same time, allows the fact finder to assess the 

witness' credibility, testimony and the evidence presented. 

Here, it was impossible for the court to make a determination 

as to the relative credibility of the party-witnesses because it 

did not have an opportunity to observe the testimony of both Mark 

and Judith. The parties in a dissolution action often deliver 
conflicting evidence, and it is the court's role to determine who 

is the more credible witness. This can be accomplished most 

effectively by observing each party's demeanor during testimony. 

Judith's reasons for testifying over the telephone included 

fear of Mark, cost of travel and inability to obtain adequate child 

care for her son while she traveled to Montana for the hearing. 

Although we recognize that Judith had legitimate concerns about 

returning to Montana, these concerns do not outweigh the necessity 

for the trial court to determine credibility. In this instance, 

the court could not evaluate the demeanor of the witness nor could 

it determine whether she was being coached or was improperly 

referring to documents. 

Moreover, it was difficult for Mark's counsel to effectively 

cross-examine Judith about the couple's financial records because 

Judith did not have those records or copies of those records to 

which she could refer and provide pertinent testimony. We cannot 

say that this was a fair trial on the merits when one side was so 

obviously handicapped and was unable to effectively confront and 

cross-examine the adverse party. 

Furthermore, alternative solutions to Judith's problems and 

concerns were available under Section V., Depositions and 

Discovery, M.R.Civ.P., and one or more of those alternatives could 

have been pursued instead of simply allowing her telephonic 

testimony over objection. As Mark's counsel stated during the 

hearing, "this case has been pending for a long time already. She 

was not going to be here, that's fine, but we could have done this 
by deposition a long time ago. As recently as this week, I allowed 

Mr. Bonamarte to be deposed. That could have been done is [sic] 

she wasn't going to be here." 

In this case, for example, it would have been possible to 

present Judith's testimony at trial by videotaped deposition. See, 

Rule 30 (h) , M.R.Civ.P. This was done quite effectively in Ferrante 

by Ferrante v. Ferrante (N.Y. Sup. 1985) , 485 N.Y. S. 2d 960. The 

procedure utilized there is described as follows: 

Plaintiff's counsel was advised in advance of the date 

and time of the telephone conference call. He was 

instructed to have present at plaintiff's nursing home at 

the time of the conference call, a notary to administer 

the oath to the witnesses and a videotape operator to 

record the witnesses' testimony. He was also instructed 

to provide the plaintiff with exact legible copies of all 

exhibits to be introduced. The purpose of this was to 

insure that plaintiff, after identifying each exhibit, 

could hold it up to the camera to be videotaped, thus 

permitting the court when reviewing the tape, to ensure 

that the marked exhibits and the copies in plaintiff's 

possession were the same. 

Ferrante, 485 N.Y.S.2d at 962. 

The plaintiff/witness in that case was a 92 year old woman who 

was in poor physical condition and was permanently confined to a 

nursing home in Florida. The court, in solving the dilemma posed 

by the necessity of taking the plaintiff's testimony without her 

presence in court while still protecting the rights of the 

defendant, stressed the importance of the videotaped record of the 

testimony. It particularly noted that the plaintiff was provided 

with copies of each exhibit and she was able to examine them before 

they were admitted into evidence. Each page of the copy of each 

exhibit was also videotaped to insure that the proper documents 
were being used and admitted. 

While, within the parameters established in our procedural 

rules and applicable statutes, the court and counsel are free to 

agree upon and to utilize different methods of presenting the 

testimony of and cross-examining a party or witness unable to 

appear personally at trial to testify, the above-described method 

at least ensures that the witness' identity can be established, 

assures that the witness is not being coached, assures that the 

witness is not improperly referring to documents (85 ALR4th at 

481), and assures that any marked exhibits and copies of the 

exhibits being referred to and offered are the same. (Ferrante, 

485 N.Y.S.2d at 962.) In addition, that method provides the court 

with a visual record of the witness' testimony and allows the fact 

finder the opportunity to draw conclusions about demeanor and 

credibility. Ferrante, 485 N.Y.S.2d at 962. 

Finally, we do not here adopt a se rule that would 

preclude the use of telephonic testimony at trial in all cases or 

circumstances. Where the trial court approves and all parties 

consent, or at least have sufficient notice to object and/or make 

alternative arrangements, we see no reason why telephonic testimony 

cannot be utilized in appropriate situations where special or 

exigent circumstances dictate the necessity for that type of 

testimony, where rights of confrontation and cross-examination are 

not substantially compromised or are otherwise adequately 

preserved, where the identity and credibility of a witness are not 

critical and where there is no need to use documentary or tangible 
exhibits in examining the witness. "Generally, special 

circumstances such as exigency, consent and knowledge of the 

witness1 identity and credentials, have dictated the admissibility 

of telephonic testimony .... In the absence of exigency or consent, 

telephonic testimony generally has not been allowed. " Byrd v. Nix 

(Miss. 1989), 548 So.2d 1317, 1319-1320. (Citations omitted.) 

(Emphasis added. ) See also: Aqua Marine Prod. v. Pathe Computer 

(N.J. 1988), 551 A.2d 195, 200. 

None of those circumstances are present in the instant case. 

Although we sympathize with Judith's position and the District 

Court's attempt to accommodate her situation and concerns, in this 

case allowing her to testify by telephone at the hearing on the 

merits over the objection of the adverse party was not an 

acceptable substitute for her personal appearance in court, 

particularly given the significance placed upon the right to 

confront witnesses in civil trials in Montana as set forth in Rule 

611(e), M.R.Evid. "The opportunity to observe a witness is so 

critical to judicial control and effective cross-examination that 

its denial is manifestly prejudicial." State ex rel. Juv. Dept. v. 

Gates (Or. 1987), 740 P.2d 217, 218. 

We hold that the District Court abused its discretion in 

allowing Judith to testify by telephone over objection at the 

hearing on the merits. We reverse and remand for a new trial in 

order to allow Mark a meaningful opportunity to "confront" the 

witness and to effectively cross-examine and in order to afford the 

opportunity for the trial court to observe the witness and make its 
determination as to her credibility. 

In view of our holding here and the necessity for a new trial, 

we decline to rule on the other issues raised by the parties 

involving child support, custody and the District Court's decision 

to allow Quentin to retain Judith's surname. 

Reversed and remanded for further proceedings consistent with 

this opinion. 

We Concur: