No. 01-690
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 167
BALYEAT COLLECTION PROFESSIONALS,
a Division of Collection Professionals, Inc.,
Plaintiff and Respondent,
v.
CLAUDIA GARLAND,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead,
Honorable Ted O. Lympus, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Edward P. Nolde, Snyder Law Office, Bigfork, Montana
For Respondent:
Andrew Pierce, Collection Professionals, Inc., Missoula, Montana
Submitted on Briefs: February 28, 2002
Decided: July 25, 2002
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Claudia Garland appeals from the Eleventh Judicial District
Court, Flathead County, order granting summary judgment to Balyeat
Collection Professionals (BCP). We reverse and remand.
¶2 Claudia raises four issues on appeal. However, because we
find the following issue dispositive, we do not address the other
issues raised.
¶3 Did the District Court err in granting summary judgment to
BCP?
Facts and Procedural Background
¶4 Randolph and Claudia Garland were married and have two
children. In April 1997, Randolph moved out of the family home.
In May 1997, Claudia filed a petition for divorce and on May 30,
1997, the District Court issued a restraining order forbidding
Randolph from coming within 500 feet of the family home.
¶5 Randolph received medical services from Kalispell Regional
Medical Center (KRMC) in May and June of 1997. Randolph died on
June 16, 1997. After his death, KRMC assigned the debt for
Randolph’s medical services to BCP for purposes of collection.
¶6 Claudia served as personal representative of Randolph’s estate
and claimed the family allowance as his surviving spouse. The only
asset of the estate was a boat that Randolph had taken in payment
for constructing a storage unit. Claudia sold the boat for
approximately $7,000.00.
¶7 BCP filed this action against Claudia to recover the cost of
Randolph’s medical services. Claudia filed a motion to dismiss
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under Rule 12(b), M.R.Civ.P., and the court held a hearing on the
matter. At the hearing, the District Court informed the parties
that it would treat the motion as one for summary judgment.
Supplemental briefs were submitted after the hearing, and the court
issued an order granting BCP summary judgment.
¶8 Claudia then filed a motion to alter or amend the judgment,
and the District Court denied that motion. Claudia now appeals the
court’s summary judgment order as well as its denial of her motion
to alter or amend.
Discussion
¶9 We review a summary judgment order de novo based on the same
criteria applied by the district court. Thomas v. Northwestern
Nat. Ins. Co., 1998 MT 343, ¶ 14, 292 Mont. 357, ¶ 14, 973 P.2d
804, ¶ 14. Summary judgment is proper if, “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Rule 56(c), M.R.Civ.P.
¶10 Generally, a spouse is not liable for debts incurred by the
other spouse. Section 40-2-106, MCA. However, “expenses for
necessaries of the family . . . are chargeable upon the property of
both husband and wife.” Section 40-2-106, MCA. “Necessary
articles” is broadly defined to include:
all such goods and services as are reasonably required to
provide for the health, welfare, comfort, and education
of the married person, his spouse, and minor children,
taking into consideration the earnings, resources, and
general standard of living of such persons.
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Section 40-2-210, MCA.
¶11 When interpreting this statutory definition, this Court has
also considered Black’s Law Dictionary definition that necessaries
include “things indispensable, or things proper and useful, for the
sustenance of human life.” Missoula YWCA v. Bard, 1999 MT 177, ¶
14, 295 Mont. 260, ¶ 14, 983 P.2d 933, ¶ 14.
¶12 In the District Court, BCP argued that Randolph’s medical
expenses were “necessaries of the family,” and therefore, under §
40-2-106, MCA, Claudia was responsible for the debt. Claudia
argued that she was not responsible for the debt because she was
legally separated from Randolph at the time he incurred the medical
expenses and because Randolph had not supported the family during
that time.
¶13 The District Court relied on our holding in Bard and concluded
that the medical expenses were necessaries. Additionally, the
court concluded that because Claudia acted as personal
representative of Randolph’s estate and received the family
allowance as his surviving spouse, she was estopped from arguing in
this case that she was not legally married to Randolph. Concluding
that there were no factual disputes, the court entered judgment in
favor of BCP.
¶14 On appeal, Claudia argues that § 40-2-104, MCA, is applicable
here and provides an exception to the liability imposed in § 40-2-
106, MCA. BCP argues that Claudia did not raise this statutory
argument at the summary judgment hearing, therefore this Court
should not address the issue on appeal.
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¶15 Section 40-2-104, MCA, provides that,
a married person abandoned by his spouse is not liable
for the spouse’s support until the spouse offers to
return, unless the spouse was justified by the person’s
misconduct in abandoning him, nor is a married person
liable for support of a spouse who is living separate
from him by agreement, unless such support is stipulated
in the agreement.
¶16 It is true that Claudia did not cite § 40-2-104, MCA, until
she filed her motion to alter or amend. In response to this
argument, the District Court noted, “the constructive abandonment
which Defendant now claims as grounds for avoiding the medical
expense were . . . testified to by Defendant. However, the Court
chose to rely very little on that testimony.”
¶17 In our de novo review of a district court ruling on summary
judgment, we are not bound by the legal authority presented in the
district court. Thomas, ¶ 22. The District Court noted that
Claudia raised the issue of abandonment in her testimony.
Additionally, we note that Claudia argued at the summary judgment
hearing that she and Randolph were separated at the time he
incurred the medical expenses at issue here. Although she argued
they were “legally separated,” rather than “living separate . . .
by agreement,” the issue of separation was clearly before the
court. We conclude that the issues of abandonment and separation
were raised in the District Court, and § 40-2-104, MCA, simply
represents further legal support for those arguments.
¶18 Claudia does not argue on appeal that Randolph’s medical
expenses were not “necessaries of the family.” They clearly fall
within the definition of necessaries we articulated in Bard.
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Rather, Claudia argues that § 40-2-104, MCA, provides an exception
to the liability imposed by § 40-2-106, MCA, and that factual
questions exist which preclude summary judgment.
¶19 We agree. Section 40-2-104, MCA, provides an exception to the
liability imposed by § 40-2-106, MCA, if a spouse has been
abandoned by the spouse incurring the debt or if the spouses are
living separate by agreement. The District Court, citing Caekaert
v. State Fund (1994), 268 Mont. 105, 115, 885 P.2d 495, 501
(stating that under the doctrine of judicial estoppel, we do not
permit litigants to assert inconsistent and contradictory positions
in separate litigation), concluded that Claudia’s role as personal
representative in Randolph’s estate was impermissibly inconsistent
with and contradictory to her argument in this case.
¶20 We disagree that Claudia’s argument here is inconsistent with
her role in Randolph’s estate. Section 40-2-104, MCA, requires
abandonment or separation by agreement to limit spousal liability.
Section 72-3-502, MCA, which sets forth the priorities for
appointment as personal representative for a deceased’s estate,
states only, “the surviving spouse of the decedent.” There is
nothing in that statutory framework that precludes an abandoned or
separated spouse from acting as personal representative in the
deceased spouse’s estate.
¶21 We conclude that Claudia’s role as personal representative for
Randolph’s estate does not preclude her from arguing here that
Randolph abandoned her or that she and Randolph were living
separate by agreement. Furthermore, we conclude that genuine
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issues of material fact exist on the question of whether Randolph
abandoned Claudia or, alternatively, whether they were living
separate by agreement. These factual disputes precluded summary
judgment.
¶22 In summary, we hold that § 40-2-104, MCA, provides an
exception to the liability imposed on spouses in § 40-2-106, MCA.
Additionally, we hold that there is a factual dispute in this case
concerning abandonment or separation.
¶23 We remand to the District Court for further proceedings
consistent with this opinion.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ JIM RICE
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Justice Terry N. Trieweiler concurring and dissenting.
¶24 I agree with the majority's conclusions that § 40-2-104,
MCA, provides an exception to the requirement at § 40-2-106, MCA,
that a spouse be responsible for another spouse's medical
expenses, and that Claudia's reliance on § 40-2-104, MCA, is not
inconsistent with her position as personal representative of her
deceased husband's estate.
¶25 However, I dissent from the majority's conclusion that there
are genuine issues of material fact regarding the application of
§ 40-2-104, MCA, and from its remand to the District Court for
further proceedings to resolve that factual issue.
¶26 Even the Respondent, Balyeat Collection Professionals,
concedes there are no factual issues to be resolved by the
District Court. On page five of its brief, BCT states, "In this
case, however, the parties agree the material facts are
undisputed. . . . Therefore, the Court's review in this appeal
may be confined to the District Court's conclusions of law."
¶27 Based on the undisputed facts, I would conclude as a matter
of law that the Appellant, Claudia Garland, was entitled to
summary judgment dismissing the Plaintiff's complaint with
prejudice.
¶28 Section 40-2-104, MCA, provides that a married person
abandoned by his or her spouse or living apart from that spouse
by agreement is not liable for the spouse's support. The
undisputed facts are that Claudia's husband, Randolph, left the
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family home in April 1997 before incurring the medical expenses
which are at issue. He left $30 on the table but never returned
to the home, and provided no further support to his family from
then until the time of his death. In May 1997, Claudia
petitioned for divorce or a legal separation and on May 30, 1997,
Randolph was restrained from returning to the family home. Only
one day of services were provided by Kalispell Regional Medical
Center in May 1997. However, they were provided after Randolph
left his family without providing for their support.
¶29 None of these facts are disputed. Based on these facts, the
District Court can arrive at only one conclusion–that is that
Claudia and her children were either abandoned by Randolph or
Claudia and Randolph were separated by agreement. Under either
circumstance, Claudia was not responsible to pay Kalispell
Regional Hospital the $32,496 it claims for services incurred
after that separation.
¶30 The result in this case is simply common sense. In fact,
during several occasions during Randolph's hospitalization while
Claudia was taking his children or his father to visit him, she
was asked by hospital personnel to sign paperwork authorizing his
admission. On each occasion she refused to do so. It was
apparently logical to her that she had no obligation to guarantee
payment for services provided to the husband who had left her
even without the benefit of understanding § 40-2-104, MCA.
Having reviewed § 40-2-104, MCA, it should be at least as clear
to this Court.
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¶31 For these reasons, I concur with and dissent from the
majority Opinion.
/S/ TERRY N. TRIEWEILER
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