No. 89-267
I N THE SUPREME COURT OF THE STATE O F MONTANA
1989
I N RE THE ADOPTION O F
R.D.T., a / k / a R.D.E.,
a Minor.
APPEAL FROM: D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of L e w i s & C l a r k ,
T h e H o n o r a b l e T h o m a s H o n z e l , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
L e o n a r d F. T h o m a s , p r o s e , H e l e n a , Montana
F o r Respondent:
J. C o r t H a r r i n g t o n , Jr., H e l e n a , M o n t a n a
S u b m i t t e d on B r i e f s : J u l y 13, 1 9 8 9
Decided: August 25, 1989
.Yd
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.
This appeal involves a claim for sanctions pursuant to
Rule 11, M.R.Civ.P. arising out of a petition for adoption.
Respondent Leonard F. Thomas appeals from the judgment of the
District Court of the First Judicial District, Lewis and
Clark County, denying his motion to impose sanctions on
petitioners Nancy J. Thomas, Mark A. Erler, and their
attorney J. Cort Harrington, Jr. The court ruled that based
on the law and the facts as presented at hearing, Rule 11
sanctions were not proper. We affirm.
Respondent Thomas raises only one issue on appeal: Did
the District Court err by failing to impose such sanctions?
R.D.T. was born to Nancy J. Thomas and Leonard F. Thomas
on October 16, 1978 in Fairbanks, Alaska. The Thomases moved
to Montana in 1979. Shortly afterward, Nancy and Leonard
separated. That same year, Nancy and R.D.T. began living
with Mark A. Erler in Basin, Montana and Leonard returned to
Alaska.
Leonard and Nancy dissolved their marriage on February
14, 1983. The decree of dissolution provided that Nancy
would have custody of R.D.T. and Leonard would have
visitation upon request. No child support was requested.
Mark and Nancy were married on August 20 of the same year.
In February of 1988, the marriage of Mark and Nancy was
dissolved. Mark moved into a guest house on the same lot as
the family home where Nancy, R.D.T and J.E. the daughter of
Mark and Nancy, resided.
In August of 1988, Leonard began exercising his
visitation rights with R.D.T. Shortly afterward, Nancy and
Mark, now divorced, filed a joint petition for the adoption
of R.D.T. by Mark. The proceeding was bifurcated into two
issues. The first issue was whether Leonard's parental
rights should be terminated for non-support of R.D.T. The
second issue involved a determination of whether the adoption
by Mark A. Erler was in R.D.T. 's best interests. A hearing
on the first issue was held on November 16, 1988 in the
District Court of the Fifth Judicial District. The court
took under advisement Leonard's motion to dismiss for lack of
jurisdiction and limited the hearing to the question of
whether Leonard's consent was required to complete the
adoption. After submission of additional briefs on the
jurisdictional question, the court granted Leonard's motion
to dismiss the petition.
On January 16, 1989, Leonard filed a motion to impose
sanctions on the petitioners Mark and Nancy and their
attorney J. Cort Harrington for violation of Rule 11 of the
Montana Rules of Civil Procedure. Leonard's motion alleged
that a reasonable inquiry into the adoption statutes by a
competent attorney would have resulted in the conclusion that
the petition for adoption was not warranted by existing law
and that the petition was filed for an improper purpose.
Leonard's motion was denied after a hearing and the propriety
of that denial is now before this Court on appeal.
Rule 11, M.R.Civ.P., which is nearly identical to the
federal rule, provides that:
. .. Every pleading, motion, or other paper of a
party represented by an attorney shall be signed
by at least one attorney of record. . . . The
signature of an attorney or party constitutes a
certificate by him that he has read the pleading,
motion, or other paper; that to the best of his
knowledge, information, and belief formed after
reasonable inquiry it is well grounded in fact and
is warranted by existing law or a good faith
argument for the extension, modification, or
reversal of existing law, and that it is not
interposed for any improper purpose, such as to
harass or to cause unnecessary delay or needless
increase in the cost of litigation.
Rule 11, M.R.Civ.P. The Rule further provides for the
imposition of sanctions on any party, the party's attorney,
or both if a pleading is signed in violation of the Rule.
Rule 11, M.R.Civ.P. Appellant Leonard first contends that a
reasonable inquiry into the adoption statute by the
petitioners' attorney, Mr. Harrington, would have indicated
that the petition was not warranted by existing law. The
applicable statute is 5 40-8-109 (1), MCA, which provides as
follows:
40-8-109 Placement for adoption by parents. (1) No
parent may make a placement of a child for adoption
with an individual who is not a stepparent or a
member of the child's extended family unless the
parent files with the district court for the county
in which the prospective adoptive parent or the
parent making the placement resides:
(a) a notice of parental placement; and
(b) a relinquishment of parental rights to the
prospective adoptive parents executed voluntarily
and in accordance with 40-6-135 (2) through (4).
As correctly noted in the District Court's Memorandum and
Order granting Leonard's motion to dismiss the petition, Mark
is neither the stepparent nor a member of R.D.T.'s extended
family. Furthermore, Nancy did not relinquish her parental
rights; rather, she specifically stated in the petition that
she would retain her parental rights. The court dismissed
the petition because the requirements of 5 40-8-109, MCA,
were not met.
Appellant argues that a reasonable inquiry into the
meaning of S 40-8-109, MCA, by Mr. Harrington would have led
to the conclusion that the adoption was not warranted by
existing law, as evidenced by the ruling of the District
Court on the motion to dismiss. However, to avoid sanctions
under Rule 11 it is not necessary that a party be correct in
their view of the law. The party need only make a good
faith argument for their view of the law. Zalvidar v. City
of Los Angeles (9th Cir. 1986) 780 F.2d 823, 830-831. Thus
the granting of a motion to dismiss against the pleader is
not dispositive of the issue of sanctions. Zalvidar, 780
F.2d at 830.
The petitioners1 attorney Mr. Harrington argued that S
40-8-109, MCA, did not apply because there had been no
"placement for adoption." "Placement for adoption" is
defined as "the transfer of physical custody of a child with
respect to whom all parental rights have been terminated and
who is otherwise legally free for adoption to a person who
intends to adopt the child. " Section 40-8-103 (10), MCA.
Petitioners argued that because there was no intent to
transfer physical custody of the child and there was no
attempt to terminate the parentlchild relationship between
Nancy and R.D.T. the petition did not constitute a "placement
for adoption." While the District Court did not agree with
this argument, it held that the argument was made in good
faith.
We agree. In judging the good faith argument the court
must strive to avoid the wisdom of hindsight in determining
whether a pleading was valid when signed, and any and all
doubts must be resolved in favor of the signer. Eastway
Construction Co. v. City of New York (2nd Cir. 1985), 762
F.2d 243, 254.
Leonard also relies on 8 40-8-125, MCA, to support his
argument that the petition was not based upon a reasonable
inquiry into the adoption statutes. The statute provides
that the effect of a final decree of adoption is to terminate
the rights of the natural parents, unless they are the
adoptive parents or a spouse of an adoptive parent, and to
vest those rights in the adoptive parents. If the District
Court had proceeded with the petition and terminated
Leonard's parental rights pursuant to the first portion of
the bifurcated hearing, a final decree of adoption entered
after the second portion would only have affected the
parent/child relationship between Nancy and her daughter
R.D.T. Thus, the appellant has no standing to raise the
issue of the effect of § 40-8-125, MCA.
Finally, Leonard contends that the petition for adoption
was filed for an improper purpose, to delay and prevent
visitation between Leonard and his daughter R.D.T. The
petitioners contend that the purpose of the petition was to
officially establish the parent/child relationship between
Mark and R.D.T., a relationship petitioners argue had existed
in fact for nine years. As noted in Schwarzer, Sanctions
Under the New Federal Rule 11 (1985), 104 F.R.D. 181, when
determining whether a pleading was filed for an improper
purpose, the court, in its discretion, should objectively
consider all the facts and circumstances in the case:
In considering whether a paper was interposed for
an improper purpose, the court need not delve into
the attorney's subjective intent. The record in
the case and all of the surrounding circumstances
should afford an adequate basis for determining
whether particular papers or proceedings caused
delay that was unnecessary, whether they caused
increase in the cost of litigation that was
needless, or whether they lacked any apparent
legitimate purpose. Findings on these points would
suffice to support an inference of an improper
purpose. The court can make such findings guided
by its experience in litigation, its knowledge of
the standards of the bar of the court, and its
familiarity with the case before it.
Schwarzer (1985), 104 F.R.D. 181, 195. The record and
surrounding circumstances in this case provided the District
Court with an adequate basis to determine if the petition was
filed for an improper purpose. The District Court found that
the petition was not filed for an improper purpose, and based
on the record the District Court's findings are not clearly
erroneous.
The imposition of sanctions pursuant to Rule 11 lies
within the discretion of the district court. Schmidt v.
Colonial Terrace Assoc. (1986), 223 Mont. 8, 723 P.2d 954. We
find no abuse of discretion in this case.
We affirm the District Court.
We concur: