No. 80-389
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
IN RE THE MARRIAGE OF
SABRE CAMILLE JENSEN,
Petition and Appellant,
and
GARY DOUGLAS JENSEN,
Respondent.
Appeal from: District Court of the Fourth Judicial ~istrict,
In and for the County of Ravalli.
Honorable James B. Wheelis, Judge presiding.
Counsel of Record:
For Appellant:
McCabe and Weingartner, Helena, Montana
For Respondent:
Milodragovich, Dale and Dye, Missoula, Montana
Submitted on briefs: May 15, 1981
Filed: .= n@ 1'7
Decided: July 17, 1981
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Petitioner Sabre Camille Jensen appeals from the judgment
of the Fourth Judicial District Court, Ravalli County, that
dissolved her marriage to respondent Gary Douglas Jensen and
provided for a division of marital assets and child support
for the parties' minor children. She presents the following
issues for our review:
1. Whether the court erred in its division of the
parties' marital estate.
2. Whether the court exceeded its jurisdiction by
apportioning the parties' ranch property water rights.
3. Whether the court erred in its child support order.
4. Whether the court erred in adopting verbatim the
proposed findings of fact, conclusions of law and decree of
dissolution proffered by Gary Jensen's counsel.
We have reviewed the record and argument of counsel and
find no reversible error. We affirm the judgment of the
District Court.
Gary and Sabre Jensen were married in 1959. Four
children were born to them: Douglas, in 1959, Eric, in
1961, Melinda, in 1963, and Jennifer, in 1967. At the time
the Jensens entered into their marriage, they owned little
personal property. Through the years, however, with a combination
of their own efforts and estate planning gifts from Gary's
parents, the Jensens acquired approximately 255 acres of
ranch land near Stevensville, Montana. The Jensens lived on
this ranch and until 1976, Gary supported the family by
maintaining a hay/cattle operation on his place and by
working as a ranch hand on his parents' place. Sabre worked
as a rancher's wife, managing the household affairs, caring
for the children and working on the ranch when needed.
In 1976, Gary was seriously injured in a motorcycle
accident, resulting in permanent partial paralysis. his
accident ended Gary's ability to effectively work on his own
and his parents' ranches. Gary was classified as totally
and permanently disabled by the Social Security Administration.
Since the time of the accident, Gary Jensen has received a
social security disability payment of $229 monthly. The
social security benefits of
Jensen children, Melinda-and Jennifer re~eive/$50.40 monthly.
In order to supplement the family income after the accident,
Sabre Jensen went to work as a dental receptionist and
grocery clerk, earning approximately $650 monthly.
In 1978, Gary and Sabre separated and the dissolution
of marriage was initiated. They were unable to informally
agree on a fair property division and the amount of child
support that Gary should pay to Sabre as custodial parent.
Two hearings were held in which the District Court received
conflicting evidence of the ranch's value and Gary's ability
to care for himself and earn a living. Following the hearings,
the court asked counsel for both parties to submit proposed
findings of fact, conclusions of law and supporting briefs
to the court, regarding an equitable division of property
and order for child support. The court received proposed
findings and conclusions from counsel and adopted the findings
of fact, conclusions of law and decree submitted by Gary's
counsel. These findings and conclusions provided that the
255 acre ranch was worth $244,600. Gary would receive
approximately 149 acres of the ranch, including most of the
prime irrigable land and hay barns, while Sabre would receive
approximately 106 acres, including the house and well. The
water rights to the land were divided and easements were
provided to allow access to the divided parcels. Sabre was
awarded the family car, home furnishings and common stock
valued at approximately $30,000. Gary was awarded farm
equipment, the registered livestock brand and his personal
possessions. The decree further provided that Gary contribute
to Sabre a sum equal to the social security disability
payments for the minor childrens' support.
I. PROPERTY DIVISION:
In her appeal, Sabre asserts the District Court erred
by failing to properly determine the Jensensr net worth, by
improperly dividing the ranch property and water rights and
by taking into account the relationship between the Jensens'
ranch operation and the adjoining ranch operated by Gary's
parents. We disagree. The action taken by the court was
well within its power and the wide discretion given to the
district courts to resolve property divisions:
"A District Court has far-reaching discretion
in resolving property divisions, and its judgment
will not be altered unless a clear abuse of dis-
cretion is shown. (Citations omitted.) The test
for reviewing the District Court's discretion
is: Did the District Court in the exercise of its
discretion act arbitrarily without employment of
conscientious judgment, or exceed the bounds of
reason in view of all the circumstances?" (Citations
omitted.) In Re Marriage of Jacobson (1979), -
.,
Mont - 600 P.2d 1183, 36 St.Rep. 1773.
In this case, the court was amply presented with evidence
of the current value of the parties' assets and properly
included its determination of the property values in its
findings, as required under In Re Marriage of Brown (1978),
Mon t . , 587 P.2d 361, 35 St.Rep. 1733. Sabre
complains the court erred by adopting the low ranch valuation
testimony offered by her husband's land appraiser expert,
instead of relying on the higher valuation offered in her
own expert's testimony. This is not reversible error. The
District Court, as the trier of fact, in this trial without
a jury, has the discretion to give whatever weight it sees
fit to the testimony of land appraiser witnesses. Dickerson
v. Dickerson (1980), Mon t . , 614 P.2d 521, 37 St.Rep.
1286. Unless the valuation is clearly erroneous, it shall
not be reversed on appeal. Rule 52 (a), M. R. Civ.P.
Sabre attacks the property division by labeling it
inequitable. The division here is not so inequitable that
it amounts to an abuse of discretion and reversible error.
As we explained in Dickerson, supra:
"Substantially inequitable property divisions were
reversed by this Court in In Re Marriage of
Berthiaume (1977), 173 Mont. 421, 567 P.2d 1388;
and In Re Marriage of Brown, supra. In Brown,
the District Court awarded the wife $25,000.00
for her interest in a $350,000.00 ranch, the
major marital asset. In Berthiaume, the District
Court found that the parties' marital property
should be equally divided, but the court awarded
the husband over $17,000.00 of the marital property
and awarded the wife less than $1,000.00 of the
property. In both cases, one spouse was awarded
over 90 percent of the marital property. Both
property decrees were held to be substantially
inequitable and were reversed."
Although the District Court did not divide the parties'
property equally, this property division is not substantially
inequitable. The court did not reversibly err by awarding
Gary the more valuable (irrigable) ranch land adjoining his
parents' property. At the time of dissolution hearings,
Gary was living with his parents and was cared for by them.
He supported himself by working as a part-time ranch hand on
the two ranches. This division, which takes into account
Gary's disability, does not "exceed the bounds of reason in
view of all the circumstances." Jacobson, supra.
Sabre further attacks the water rights property division
contending the District Court lacked the power to divide
the existing water rights. She argues that a water judge
alone has the power to make this division. We do not agree.
Although the water judges have exclusive jurisdiction over
the determination and interpretation of existing water
rights, a district judge has original jurisdiction in
dissolution of marriage proceedings and is required by
statute to divide and distribute all marital property
involved including any water rights. See, sections 3-7-501,
3-5-302, and 40-4-202, MCA. A water right is a kind of
property. See, Brennan v. Jones (1936), 101 Mont. 550, 55
P.2d 697.
11. CHILD SUPPORT:
We find no reversible error in the District Court's
child support award. Although we firmly believe it is the
legal and moral duty of parents to support their children,
our statutes place the burden of determining the proper
amount of support upon the District Court. See, section 40-
4-204, MCA; State ex rel. Lay v. District Court (1948), 122
Mont. 61, 198 P.2d 761. Absent a clear abuse of discretion
resulting in substantial injustice, an award of child support
made by that court will not be disturbed on appeal. Grenfell
v. Grenfell (1979), Mont. , 596 P.2d 205, 36 St.Rep.
1100; Brown, supra. Although the award here of $50.40 per
child per month is extremely low, it is consistent with the
ability of Gary as noncustodial parent, to pay for support.
There is no abuse of the court's wide discretion.
111. - - PROPOSED FINDINGS BY - COURT:
USE OF - THE
In her final specification of error, Sabre argues the
District Court erred by adopting the proposed findings of
fact, conclusions of law and decree submitted by Gary's
counsel. She suggests that a lower standard for review
should exist for the review of findings and conclusions
drafted by counsel than exists under the "clearly erroneous"
standard of Rule 52(a), M.R.Civ.P. We decline to adopt this
suggestion. In Schilling v. Schwitzer-Cummins Co. (D.C.
Cir. 1944), 142 F.2d 82, Justice Miller addressed this
precise suggestion and persuasively explained reasons for
allowing courts to ask for counsel's assistance in drafting
findings of fact and conclusions of law:
"Whatever may be the most commendable method of
preparing findings--whether by a judge alone,
or with the assistance of his court reporter,
his law clerk and his secretary, or from a
draft submitted by counsel--may well depend upon
the case, the judge, and facilities available
to him. If inadequate findings result from
improper reliance upon drafts prepared by counsel--
or from any other cause--it is the result and not
the source that is objectionable. It is no more
appropriate to tell a trial judge he must refrain
from using or requiring the assistance of able
counsel, in preparing his findings, than it would
be to tell an appellate judge he must write his
opinions without the aid of briefs and oral
argument."
Our ultimate test for adequacy of findings of fact is whether
they are sufficiently comprehensive and pertinent to the
issues to provide a basis for decision, and whether they
are supported by the evidence presented.
In Tomaskie v. Tomaskie (1981), - Mont . -, 625 P.2d
536, 38 St.Rep. 416, we disapproved of wholesale adoption
of proposed findings submitted by a party. Such a practice
may lead to error. See, Beck v. Beck, Cause No. 81-286,
Decided July 9, 1931 in this Court. Once findings are
adopted however, Rule 52(a) applies to support them on appeal,
and there is no reason in the Rules or otherwise to give
such adopted findings a lesser degree of weight, since once
signed by the district judge they bear the imprimatur of the
court.
The findings of fact and conclusions of law entered here
by the court are comprehensive and supported by the evidence.
They contain no clear error.
The judgment of the District Court is affirmed.
Justice
Mr. Justice Daniel J. Shea concurring:
Although I agree to affirm the judgment, I nonetheless
express my disapproval of the trial court's adoption verbatim
of the proposed findings and conclusions submitted by counsel
for the husband. Counsel for the wife, however, raises this
issue for the first time on appeal, and therefore, in the
context of her failure to raise this issue in the trial court
after it originally adopted verbatim the proposed findings
and conclusions, I would not reverse on this ground. However,
absolutely no reason exists (other than judicial expediency,
which is no reason at all) for this Court to tolerate the
practice of a trial court simply rubber-stamping the proposed
findings and conclusions submitted by counsel for the winning
party.
Procedurally, after the trial ended and both sides had
submitted their proposed findings and conclusions, the trial
court adopted verbatim those proposed by the husband, and
judgment was entered accordingly. The wife then moved the
trial court to amend its findings and conclusions in certain
particulars, but she did not complain then that the trial court
had adopted verbatim those findings and conclusions proposed
by the husband. The trial court failed to directly act on
the wife's proposed amendments because the time went by without
a decision and therefore, under Rule 59(d), the motion was
deemed denied. It appears, however, that the wife's counsel
did everything he could to get the trial court to act on the
proposed amendments, but the trial court did not affirmatively
act.
If the wife had raised the issue before the trial court
and complained that it should not have adopted verbatim the
husband's proposed findings and conclusions, this case would
be in a different procedural perspective on appeal, and I
believe that basic judicial policy would dictate that the
case be vacated and remanded so that the trial court could
enter its own findings and conclusions. It may well be that
the result would be no different, but this Court should not
tolerate a decision-making process of the District Court
which consists entirely of the wholesale adoption of the
proposed findings and conclusions of the winning party.
I do not believe that anyone would or should tolerate
a practice of this Court of reaching a decision in an appeal
and then directing counsel for the winning party to prepare
an opinion for the members of this Court to sign. Nor do
I think anyone would or should tolerate the procedure of a
trial court adopting verbatim the proposed findings and
conclusions of the winning party. In both situations, the
judicial process is demeaned.
In addition, I emphasize that Schilling v. Schwitzer-
Cummins Co. (D.C. Cir. 1944), 142 F.2d 82, cited and quoted
in the main opinion, must be considered in the context of
what happened in that case. Several factors are pertinent.
First, the trial court wrote a preliminary memorandum after
the trial ended, holding for the defendant, stating the facts
were essentially as contended by the defendant, and then
directed counsel for defendant to prepare the findings and
conclusions. Second, a reading of Schilling does not disclose
that the trial court adopted verbatim the submitted findings
and conclusions, although it may perhaps be inferred. Third,
the plaintiff relied, to a large extent, on certain evidence
to support its case, but in the memorandum,the trial court
held he excluded this evidence from any consideration, and
the appellate court upheld the trial court on this issue.
Needlessto say, certain facts contended by the plaintiff
evaporate when supporting evidence is properly excluded.
Fourth, and most important, nowhere in the opinion did the
court approve of the wholesale adoption of proposed findings
and conclusions presented by the winning party.
The integrity of the judicial process cannot be upheld
if a trial court is free to adopt verbatim the findings and
conclusions presented by the winning party. In fact, Canon
19 of the Canons of Judicial Ethics, fairly construed, does
not permit such practice. The first paragraph of this Canon
states:
"In disposing of controverted cases, a judge
should indicate the reasons for his action
in an opinion showing that he has not disregarded
or overlooked serious arguments of counsel. He
thus shows his full understanding of the case, avoids
the suspicion of arbitrary conclusion, promotes
confidence in his intellectual integrity and may
contribute useful precedent to the growth of the
law." 144 Mont. at xxii--xxxiii.
Canon 19 would be stripped of substance if this Court
held that it applies only to written decisions of a trial
court, but not to written findings and conclusions of a trial
court--both accomplish the same result--both decide the case.
Verbatim adoption of the proposed findings and conclusions of
the winning party cannot help but create a belief that the
trial court did not have a full understanding of the case and
that it reached an arbitrary conclusion. Certain it does not
promote confidence in the intellectual integrity of the trial
courts. I view the practice of verbatim parrating of proposed
findings and conclusions no differently than I would view an
opinion of this Court if it were written by counsel for the
winning party. The opinion may be factually supportable, and
it may be legally sound, but neither the losing party nor the
public would have any confidence in an appellate court if it
were to adopt such a practice. Nor should the losing
party or the public have any confidence in a trial court
that rubber-stamps the proposed findings and conclusions of
the winning party,
THE PURPOSE OF FINDINGS OF FACT
Findings of fact serve three purposes. First, they
assist the trial court in the adjudication process in that
careful fact-finding does or at least should prevent a trial
court from "shooting from the hip." 1 San Diego Law Review
14. Also see, United States v. Forness (2nd Cir. 19421,
125 F.2d 928. Second, findings of fact "serve other courts
where issues of estoppel by judgment or res judicata are
involved. A later court looking at a judgment based on
such findings must know precisely what was decided, and this
cannot be determined by the judgment alone . . ." 1 San Diego
Law Review 14. Third, the findings "inform the court of
appeals of the basis of the judgment." 1 San Diego Law
Review 14.
The question then becomes one of whether trial courts
should be permitted, in fulfilling this three-fold purpose,
to simply enter as their own, the proposed findings and
conclusions proposed by the winning party. Respect for the
judicial process demands that the answer be no.
POLICY REASONS FOR REQUIRING THE TRIAL COURT TO DO ITS OWN
FACT-FINDING AND CONCLUSION-MAKING
I emphasize first that this Court has expressly disapproved
of the verbatim parroting of findings and conclusions of the
winning party. Tomaskie v. Tomaskie (1981), - Mont .- I
625 P.2d 536, 38 St.Rep. 416; Beck v. Beck (Decided July 9,
1981, Cause No. 81-286), cited in the main opinion. Tomaskie
cited Canon 19 as one of the reasons why this practice is wrong.
Beyond Canon 19, and beyond what we said in Tomaskie,
judicial policy dictates that the practice should be forbidden.
In United States v. Forness (2nd Cir. 1942), 125 F.2d 928,
cert-den. 316 U.S. 694, 62 S.Ct. 1293, 86 L.Ed. 1764, Judge
Frank stated that this practice is an abdication of the great
powers reposed in the trial courts. He stated:
"The correct finding, as near as may be, of
the facts of the law suit is fully as important
as the application of the correct legal rules
to the facts as found. An impeccably 'right'
legal rule applied to the 'wrong' facts yield
a decision which is as faulty as one which results
from the application of the 'wrong' legal rule to
the 'right' facts. The latter type of error, indeed,
can be corrected on appeal but the former is not
subject to such correction unless the appellant
overcomes the heavy burden of showing that the
findings of fact are 'clearly erroneous.' Chief
Justice Hughes once remarked 'an unscrupulous
administrator might be tempted to say 'let me find
the facts for the people of my country, and I care
little who lays down the general principles.'" That
comment should be extended to include facts found
without due care as well as unscrupulous fact-finding;
for such lack of due care is less likely to reveal
itself than lack of scruples, which, we trust, seldom
exists. And Chief Justice Hughes' comment is just
as applicable to the careless fact-finding of a judge
as to that of an administrative officer. The judiciary
properly holds administrative officers to high standards
in the discharge of the fact-finding function. The
judiciary should at least measure up to the same
standard." 125 F.2d at 942.
Because of the great power residing in the office of a
trial judge, the role of fact-finding is a heavy responsibility
which must be engaged with the greatest of care. Judge Frank
continued:
"The trial court is the most important agency of
the judicial branch of government precisely because
on it rests the responsibility of ascertaining the
facts. When a federal trial judge sits without a
jury, that responsibility is his. And it is not
a light responsibility, since, unless his findings
are 'clearly erroneous,' no upper court may disturb
them. To ascertain the facts is not a mechanical
act. It is a difficult art, not a science. It
involves skill and judgment. As fact-finding is
a human undertaking it can, of course, never be
perfect and infallible. For that very reason,
every effort should be made to render it as adequate
as it humanly can be. (Footnotes omitted.)" 125
F.2d at 942-943.
The power of a state trial judge can be likened to the
power of a federal trial judge insofar as their role as a
fact-finder is concerned. What was said in Forness, supra,
has equal application to the role of a state trial judge. If
then, state trial judges are to have this vast power (and they
surely have it), does it not make sense that the trial judge
dces tt-efact-finding and the conclusion-making, rather than
counsel for the winning party?
If a trial court rubber-stamps the findings and conclusions
presented by the winning party, I believe it to be an abuse
of the judicial power. Although the judge signs his name to
the findings and conclusions, it is indeed winning counsel
who has disposed of the case in a manner that he thinks will
be most advantageous to his client and least subject to
successful attack on appeal. If it is for counsel to propose
and the trial courts to dispose, it demeans the judicial
process to have counsel for the winning party to do the
fact-finding and conclusion-making.
In Ballantyne v. Anaconda Co. (1978), 175 Mont. 406,
574 P.2d 582, this Court, in holding that it is of utmost
importance for the trial courts to set out the reasons for
their decisions, quoted from West, The State Trial Judge's
Book (1965). The policy behind setting out the reasons for
a decision applies equally well to the policy of requiring
the trial court to do its own fact-finding and conclusion-
making. We stated:
"When the time comes to prepare a written
exposition of the basis for a decision, the
judge has a heavy task on his hands. He feels
the need to do his part well, in justice to the
parties, to himself and to the position he
occupies. The judge will write better opinions
if he considers some of the important purposes
they are intended to serve. A well-considered
opinion can be of value to the judge himself,
to counsel and the parties. It is invaluable
to the appellate court, if the case goes up on
appeal.
"The function of the opinion is to state the
reason which led the court to decide the case
the way it did. Moreover, since in the process
of preparing an opinion the judge must discipline
his thinking, he is more apt to reach a just
decision in a complex case if he reduces his
reasoning to writing.
"Chief Justice Hughes once commented, 'The importance
of written opinions as a protection against judicial
carelessness is very great.'
"Opinions may be of great service to the litigants
and counsel in determining what their future course
should be. The opinion may point the way to an
appeal, or it may eliminate one. In either event,
the practical value to those most concerned is great.
"A well-stated opinion is of great assistance to
the appellate court as a chart of the reasoning
followed by the trial judge in reaching a decision.
Not everyone would agree with the cynical old judge
who is credited with saying, 'As far as the appellate
court is concerned, maybe they can think up a good
reason to support my judgment. I don't want to give
them a bad one.'" 175 Mont. at 409.
The basic policy set out in the -
State Trial JudgGs Book
and quoted in Ballantyne, applies equally to findings of
fact and conclusions of law. If the findings of fact and
conclusions of law are prepared entirely by counsel for the
winning party, of what value are they to the losing party,
to the public, or to an appellate court? True, they decide
the case once the trial judge has signed his name to them.
But they state only how counsel for the winning party reasoned,
and what counsel thought about the case, and not what the
trial court thought about the case. Is it fair to assume,
then, that counsel for the winning party did his thinking for
the trial court? I believe it is, simply because there would
be m indicatioll from the record that the trial court independently
examined the evidence and the law, and then arrived at -
its
own findings and conclusions.
P
FINDINGS AND CONCLUSIONS UNDER RULE 52 (a)
By Rule 52 (a), M.R.Civ. P., the duty to make findings
and conclusions in judge-tried cases, is clearly imposed on
the trial court. The rule states:
"In all actions tried upon the facts without
a jury or with an advisory jury, the court shall
find - facts specially and state separately its
-- the
conclusions - - thereon, and judgment shall be
of law
entered pursuant to Rule 58; and in granting or
refusing interlocutory injunctions the court shall
similarly set forth the findings of fact and
conclusions of law which constitute the grounds of
its action. Requests for findings - - necessary
are not
for purposes of review. Findings of fact shall not
be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the trial
court to judge the credibility of the witnesses. The
findings of a master, to the extent that the court
adopts them, shall be considered as the findings of
the court. If an opinion or memorandum of decision
is filed, - -- i n - -u f c e f h d n s -
- itw be s f i i - t e i-
g of
--- and conclusions of law are unnecessary under
f a c t conclusions - - appear therein.
of law in dings
of fact
Rules 12 or ;56 or any other motion except as provided
in Rule 41 (b)." (Emphasis added. )
By Rule 52(a), it is the duty of the trial court to
enter its findings and conclusions in judge-tried cases,
and even if a party does not request the trial judge to make
certain findings, judicial review is nonetheless available.
Further, Rule 52(b), although it permits motions to request
amendment of the findings or to make additional findings, does
not require that this be done before a party has a right to
challenge on appeal the sufficiency of the evidence to support
the findings. It is clear, therefore, that the trial courts
cannot foreclose one from challenging the sufficiency of the
evidence to support the findings, even though the party has
neither requested certain findings to be made nor moved to
amend the findings or to make additional findings.
Rule 83, M.R.Civ.P., permits district courts to promulgate
local practice rules in addition to the Rules of Civil
Procedure as long as they are consistent with the Rules of
Civil Procedure. Tt appears that many district courts, if
not all, have promulgated local practice rules which call
for counsel, at the conclusion of the case, to submit proposed
findings and conclusions. Usually, each party is given so
many days after the trial within which to present their
proposed findings and conclusions. I see nothing wrong
with these ri?les as long as they do not contain any sanctions
affecting the right of appeal. Rules 52(a) a i (h), clearly
rd
would prohibit any such sanctions. That is so because the
duty of fact-finding and conclusion-making is unconditionally
imposed on the trial court by Rule 52. The failure of counsel
to act cannot therefore, relieve the district courts of their
affirmative duty to act--that is to enter findings and
conclusions.
The language of Rule 52(a) "the court shall find the
facts specially and state separately its conclusions of law
thereon . . ." means exactly what it says.. In, Tomaskie,
supra, this Court frowned on the practice of a trial court's
adopting verbatim the proposed findings and conclusions of
the winning party. All of the Federal Circuits have frowned
on this practice with the exception of the Ninth Circuit.
1 San Diego Law Review 14. In interpreting Federal Rule 52(a),
the Court in Roberts v. Ross (3rd Cir. 1965), 344 F.2d 747,
held that its purpose:
.
". . is to require the trial judge to formulate
and articulate his findings of fact and conclusions
of law in the course of his consideration and
determination of the case and as part of his
decision making process, so that he himself may be
satisfied that he has dealt fully and properly with
all the issues in the case before he decides it and
so that bhe parties involved may be fully informed
as to the bases of the decision . . ."
344 F.2d
at 751.
The court held that a trial court does not fulfill this
function when it adopts verbatim the proposed findings and
conclusions of the winning party.
In Merrill v. Merrill (Alaska 1962), 368 P.2d 546,
the Alaska Supreme Court held that under Rule 52(a), this
duty cannot be fulfilled if the trial court merely adopts the
proposed findings and conclusions of the winning party. The
trial judge himself must make the findings to assure:
". ..
that he has exercised care in ascertaining
the facts, and has employed both skill and
judgment in reducing his thoughts on contested
matters to precise and pertinent findings while
the evidence is still fresh in his mind." 368
P.2d at 548.
he propriety of a trial court adopting verbatim the
proposed findings and conclusions of the winning party, is
annotated in 54 A.L.R.3d 868: Propriety and Effect of Trial
Court's Adoption of Findings Prepared by Prevailing Party.
This annotation covers only annotations of state courts.
Needless to say, the decisions go in every direction, and
for a variety of reasons. It is safe to say, however, that
although many states have tolerated the practice, as a preferred
practice, none have recommended it.
In those jurisdictions which disapprove of the practice,
the annotation summarizes the reasons for disapproval:
"A number of cases, however, have registered
disapproval of the practice of findings prepared
by counsel for the prevailing party, both apart
from any statute concerned with the making of
findings, and under such statutes. Apart from
complaints with regard to verbosity and improper
content, often lineaments of counsel-drawn findings,
the criticisms seems to have three bases: (1)
preparation of findings [by the trial court] aids
in the process of adjuication; (2) by the very nature
of proper judicial function, the findings should be
those of the trial judge, and (3) the applicable
statute concerned with preparation of findings
indicated that the duty thereof was that of the trial
judge." 54 A.L.R.2d at 871.
As far as I am concerned, all three of these reasons
(in addition to others I have mentioned) apply to a deter-
mination in this state that verbatim parroting of the
prevailing party's proposed findings and conclusions, should
not be permitted. Rule 52(a), supra, unequivocally imposes
the duty on the trial judge to make findings and conclusions.
Further, the judicial function is such that the findings should
be those of the judge, and if not so, the judicial process
has been demeaned. The process of adjudication is undeniably
aided by the trial court's entering its own findings and
conclusions.
TEE ROLE OF COUNSEL IN PREPARATION OF FINDINGS AND CONCLUSIONS
As I previously stated, counsel should have input if
the trial court desires it, in proposing findings and con-
clusions, as long as those findings and conclusions proposed,
are used as a guide of the views taken by opposing counsel.
In Tomaskie, supra, we stated what we thought the role of
counsel and the trial court to be in relation to findings and
conclusions:
.
". . It is wise practice for the trial court
to prepare and file its own findings and conclusions.
Only in that fashion can the parties know that the
trial court has carefully considered all of the
relevant' facts and issues involved. This is not to
say, however, that the trial court shouldn't have
the guidance from lawyers on both sides. But guidance
in an adversary system is always such that the
findings and conclusions may not indicate a thorough
treatment of the fact and law to be applied. But
proposed findings and conclusions give the trial judge
good insight as to just what factors the parties deem
to be important. It is then up to the trial judge to
translate p i i s own judgment and conclusions into
appropriate findings and conclus,ions.
"It is becoming increasingly apparent to this Court,
however, that the trial courtsrely too heavily on
the proposed findings and conclusions submitted by
the winning party. That is wrong! See, Canon 19,
Canons of Judicial Ethics, 144 Mont. at xxvi--xxvii."
Federal decisions, even though disapproving of verbatim
parroting of the prevailing party's proposed findings and
conclusions, have also recognized a vital role of counsel in
submitting their suggested findings and conclusions to the
trial court. But they have also recognized the fundamental
and nondelegable duty of the trial court to do his own fact-
finding and conclusion-making. See, for example, Roberts
v. Ross, supra, 344 F.2d at 752-753; Louis Dreyfus & CIE v.
Panama Canal Company (5th Cir. 1962), 298 F.2d 733, 737-739;
and, Mesle v. Kea Steamship Corporation (3rd Cir. 1958), 260
In Ross, the Court spoke directly to the issue of
the use of findings and conclusions presented by counsel:
".. . We did not then [In Mesle, supra] and we
do not now, mean to suggest that a trial judge
should not have the right to invite counsel for
both parties to submit to him proposed findings
of fact and conclusions of law, accompanied by
briefs, if he desires them, to assist him in
formulating his own findings and conclusions and
reaching his decision. In the process of studying
the facts and the law, findings and conclusions
formulated and proposed by the parties may be most
helpful to the judge in sharpening the issues and
may serve a very useful purpose in aiding him in
drafting his own findings and conclusions. . ."
344 F.2d at 752.
However, the Court also pointed out that even if the
findings and conclusions prepared by counsel are sufficient,
that the practice could trigger closer scrutiny of the
evidentiary basis for the decision:
.
". . But it should be remembered that findings
and conclusions prepared by a party and adopted
by the trial court without change are likely to
be looked at by the appellate court more narrowly
and given less weight on review than if they are
the work produced of the judge himself or at least
bear evidence that he has given them careful study
and revision. For the latter procedure would assure
the appellate court, as Judge Wisdom pointed out
in Louis Dreyfus & CIE v. Panama Canal Company, 5th
Cir. 1 9 6 2 , 2 9 8 F.2d 733, 738, 'that the trial judge
did indeed consider all the factual questions
thoroughly and would guarantee that each word in
the finding is impartially chosen . . ." 344 F.2d
at 752. (Emphasis added.)
A distinction should be made, furthermore, between many
of the federal cases and the procedure which seems to be most
prevalent in this state. Many of the federal decisions involve
situations where the trial judge has announced his decision
and has filed a memorandum setting forth his basic conclusions.
He then directs counsel for the prevailing party to draft
findings and conclusions in accordance with those views. Although
I do not think this practice is good either, at least it shows
that the federal court has reached the basic decisions of
who the prevailing party is and what the basis of the
decision is. But even this practice fails to recognize
the fundamental importance of fact-finding in the decision-
making process, as opposed to first reaching a decision and
then making those findings line up with the basic decision.
In this state, for the most part, the practice is for the
trial judge, at the conclusion of the case, to give such
counsel time to present his proposed findings and conclusions
before the decision is reached. Nor do I believe this is
the preferable method of handling proposed findings and
A SUGGESTED PROCEDURE FOR A MORE EFFECTIVE USE OF PROPOSED
FINDINGS AND CONCLUSIONS: THEY SHOULD BE SUBMITTED BEFORE
THE TRIAL BEGINS
Whether the trial courts conclude the trial and then
give each party time to present proposed findings and con-
clusions, or whether they expect that proposed findings and
conclusions should be presented to the court at the conclusion
of the trial, each procedure fails to make the most effective
use of the work of counsel in presenting proposed findings and
conclusions. Rather, the trial court should require that
counsel present proposed findings and conclusions before the
trial begins. At the conclusion of the trial, if, for some
reason counsel feels his findings and conclusions should be
amended or supplemented, the trial court should give them time
to do so. But the trial court should have the proposed findings
and conclusions before the trial begins so that it can use
them during the course of the trial.
My suggestion is not a novel one. Judge James M. Carter,
then a United States District Judge for the Southern District
of California, one of the authors of Findings of Fact, 1 San
Diego Law Review 13, suggested this procedure in 1964.
Undoubtedly many trial courts throughout the nation follow
this procedure. The procedure suggested is:
"Various judges have suggested that a requirement
that both sides submit their proposed findings of
fact and conclusions of law before the trial starts
would be helpful in the trial of a civil case,
particularly a complicated one. If this practice
is adopted, under each proposed finding counsel
should set forth in supporting the proposed finding:
a) the name of the witness, b) a summary of the
proposed testimony of the witness, and c) the
documents to be offered in support of the findings,
attaching copies for the inspection of the court.
"Such a practice would seem beneficial in a complex
case in fulfilling the purpose of the findings as
outlined above. F.R.Civ.P. Rule 52(a) suggests
that the court find the facts and state its conclusions
of law prior to entering judgment, which is certainly
a logical approach. It would appear$ that if the
proposed findings are submitted prior to the receipt
of evidence, the court could more easily determine
the factual issues while the evidence is quite fresh."
(Emphasis added.)
These suggestions by Judge Carter are a far preferable
method of making the most effective use of proposed findings
and conclusions. In fact, while the trial is going on, the
trial judge may well use the proposed findings and conclusions
as a checklist against the evidence heard, and the trial judge
may well during the course of the trial, make preliminary
comments that will aid him in finding the facts and reaching
the ultimate decision. It would not then be a difficult task
to convert his own thoughts, his own determinations, into
meaningful findings of fact. The same procedure could be
used for the application of the law which opposing counsel
suggests could apply. The trial judge could at least be making
preliminary determinations, during the course of trial, as
to which law should apply, and how to apply it. The process
of tentative findings and conclusions, taking place during
the course of the trial, and always, of course, being subject
to change before the decision, should be of immense aid in
coming both to a speedy and just decision.
I also suggest the use of two more procedures that
would aid in the decision-making process and aid this Court
in appellate review. First, although the procedure is
rarely invoked in judge-tried cases, the pretrial procedure
provisions contained in Rule 16, M.R.Civ.P., should be used
more often. In conjunction with invoking this procedure,
there is no reason why the trial courts could not initiate
a procedure directing that attorneys get together in an
attorneys conference to see what they can do in terms of
agreements so that they can present a more streamlined case
to the trial court. Creative use of Rule 16, combined with
the other power of the trial courts under Rule 83, can be
utilized to greatly facilitate the decision-making process--
resulting both in faster decisions and in better decisions.
Secona, I believe that the trial courts too frequently
overlook the alternative to separately stating the findings
and conclusions--that of writing a memorandum of decision
incorporating the findings and conclusions in the memorandum.
This is expressly permitted by Rule 52(b), M.R.Civ.P.
Frequently, I find that a memorandum of decision, incorporating
all the findings and conclusions in that memorandum serves as
a better guide as to just how the trial court reached its
decision. In addition, I believe that even if the trial courts
separately stz* fmdings of fact and separately state their
conclusions of law as provided for in Rule 52(a), a memorandum
explaining the reasons for their decision is of great help
to the parties and certainly to this Court. Often the findings
and conclusions are so cold and barren, that they really give
this Court no insight as to what the trial court really thought
about the case.
I would hope that if the trial judges read Tomaskie, supra,
they are now aware that this Court does not approve of the
verbatim adoption of the proposed findings and conclusions
proposed by the prevailing party. If, however, the practice
continues, I hope that this Court meets the issue head-on
and either tells the trial courts they can do it or that
they cannot do it. By this separate concurring opinion,
my position is stated.