No. 14582
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1979
LYLE A. MASSARO,
P l a i n t i f f and Respondent,
VS .
DORETTA JANE DUNHAM,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e Eighteenth J u d i c i a l D i s t r i c t ,
Honorable W. W. L e s s l e y , Judge p r e s i d i n g .
Counsel o f Record:
For Appellant: , , ,
I
A1 F r o s t , L e g a l S e r v i c e s , Bozeman, Montana
F o r Respondent:
McCabe and W e i n g a r t n e r , H e l e n a , Montana
S u b m i t t e d on b r i e f s : November 7 , 1979
Decided: NOY 2 8 1
m
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 Doretta in
by
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. - Rule 2, Mont.R.App.Civ.P.
See,
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 interroga-
tories 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. - State
See,
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-
~ickmanv. 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 ~ y l e ' 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
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