Archive | March, 2016

Volk v. Goeser

Volk v. Goeser, 2016 MT 61 (March 8, 2016) (Wheat, J.; Rice, J., concurring; Shea, J., concurring; McKinnon, J., dissenting) (6-1, rev’d)

Issue: Whether the district court properly granted summary judgment to Valerie and denied the imposition of a constructive trust on life insurance proceeds in favor of RBV, a minor child.

Short Answer: No.

Summary judgment reversed, remanded to fashion constructive trust

Facts: Roy and Pamela Volk married in April 1996, and had a son, RBV, in 2000. In June 2010, Roy filed for divorce and the district court issued the statutorily mandated summons and TRO. The dissolution decree was entered in December 2011.

Roy and Pamela entered into a marital settlement agreement (MSA) the day before the final decree of dissolution.…

Davis v. Davis

Davis v. Davis, 2016 MT 52 (March 8, 2016) (Rice, J.) (5-0, aff’d)

Issue: Whether district court erred in affirming the standing master’s order amending the parenting plan and awarding primary custody to mother during the school year.

Short Answer: No.

Affirmed

Facts: Jennifer and Russell are parents of HD, 5 years old. Jennifer lives in Jackson, Wyoming, and Russell lives in Great Falls. The couple divorced in 2012, and their stipulated parenting plan split HD’s time equally between her parents, two weeks at a time. As kindergarten approached, the parents realized the parenting plan would have to be modified.

Russell moved to modify in November 2014, and Jennifer responded with her own proposed parenting plan.

Procedural Posture & Holding: The standing master held a hearing and issued findings, conclusions, and an order amending the parenting plan so that HD lives with Jennifer during the school year.…

Marriage of Bliss

Marriage of Bliss, 2016 MT 51 (March 8, 2016) (Shea, J.) (5-0, aff’d)

Issue: (1) Whether the district court erred in finding the prenuptial agreement was valid and enforceable; and (2) whether the district court properly determined that more than 150 firearms belonged to Bliss.

Short Answer: (1) No, and (2) yes.

Affirmed

Facts: Creed Evans and Dava Bliss married in 1996, and divorced in 2015. One day before their marriage, they executed a notarized prenuptial agreement providing that all property held individually by a party before and during the marriage remains that party’s property upon dissolution. Before signing the agreement, Evans met with an attorney to obtain independent legal advice.

During the dissolution proceedings, Bliss moved for a declaratory judgment that the agreement governed the distribution of marital property and debt.…

Global Client Solutions, LLC v. Ossello

Global Client Solutions, LLC v. Ossello, 2016 MT 50 (March 2, 2016) (McGrath C.J.; Wheat, J., concurring; McKinnon, J., dissenting) (5-2, aff’d)

Issue: (1) Whether the district court erred in reserving to itself the determination of arbitrability; and (2) whether the district court erred in determining that the arbitration provision was unconscionable and therefore not enforceable.

Short Answer: (1) No; and (2) no.

Denial of motion to dismiss and to compel arbitration affirmed

Facts: Ossello had more than $40,000 in unsecured debt in 2012 when she received an unsolicited mailing from World Law, advertising that it could provide debt relief services. Ossello called and spoke to a sale agent. Ossello and the agent reviewed several form agreements, which Ossello electronically signed, including a Client Services Agreement with World Law and a Dedicated Account Agreement (DAA) with Global Client Solutions.…

Johnson v. Wayne S. Hansen Trust

Johnson v. Wayne S. Hansen Trust, 2016 MT 46 (March 1, 2016), amended and superseded on rehearing (May 3, 2016) (Rice, J.) (5-0, aff’d)

Issue: (1) Whether the district court erred by granting summary judgment to Johnson and declaring the tax deeds void; and (2) whether the district court erred in determining the final amount due to the Trust as purchaser of the tax liens.

Short Answer: (1) No, and (2) no.

Affirmed

Facts: Johnson owned three parcels of real property in Powell County, valued collectively for tax purposes at $260,478. After Johnson failed to pay the property taxes over several years, the Trust purchased tax deeds to the properties in December 2012. The Trust filed quiet title actions for the three properties in March 2013, and Johnson responded by filing his own quiet title actions, alleging the tax deeds issued to the Trust violated statutory procedures and should be set aside.…

Fellows v. Saylor

Fellows v. Saylor, 2016 MT 45 (March 1, 2016) (Baker, J.) (5-0, aff’d)

Issue: (1) Whether the water right claims in controversy were properly determined under Fellows I, 2012 MT 169; and (2) whether the district court erred in granting Fellows’ motion for substitution.

Short Answer: (1) Yes, and (2) the appeal of this issue is untimely.

Affirmed

Facts: Fellows owns several water rights in Spring Creek near Choteau. His rights were decreed in Sands Cattle & Land Co. v. Jackson (Mont. 10th Jud. Dist. Ct. 1892). Fellows claims that Spring Creek and the Teton Rover are hydrologically connected, and that maintaining the flow in Spring Creek requires maintaining water in the Springhill Reach, a subsurface aquifer from the Teton River.…

State v. Awbery

State v. Awbery, 2016 MT 48 (March 1, 2016) (McGrath, C.J.; Cotter, J., concurring) (7-0, aff’d)

Issue: (1) Whether the district court properly excluded evidence that some of the victims had suffered prior sexual abuse by others; (2) whether Awbery is entitled to a new trial based on prosecutorial misconduct; and (3) whether Awbery is entitled to a new trial based on the cumulative effect of several alleged errors.

Short Answer: (1) Yes; (2) no; and (3) no.

Affirmed

Facts: The state charged Awbery with two counts of incest against his daughter, AA, when she was 12 or younger; sexual assault and sexual intercourse without consent against AA’s half-sister, JG, when she was 16 or younger; sexual intercourse without consent again IA when she was 12 or younger; and sexual assault against NH when she was 16 or younger.…

Bergum v. Musselshell County

Bergum v. Musselshell County, 2016 MT 47 (March 1, 2016) (McKinnon, J.; Baker, J., concurring) (5-0, aff’d)

Issue: (1) Whether the district court erred in concluding the statute of limitations in § 2214, RCM (1935) barred Bergum’s quiet title action, and (2) whether the district court erred in denying Musselshell County its attorney fees under § 25-7-105, MCA.

Short Answer: (1) No, and (2) no.

Affirmed

Facts: This case involves the disputed ownership of subsurface mineral rights to 320.58 acres of coal-rich land in Musselshell County. In 1908, Lincoln and Annie Westcott received patents for adjacent parcels of 160 and 160.58 acres, for which they paid $1,600 and $1,605.80 respectively. Lincoln then conveyed his patented 160 acres to Annie.…