*1 JENSEN, In rе MARRIAGE SABRE CAMILLE Peti JENSEN, Appellant, GARY DOUGLAS tioner Respondent. No. 80-389. May
Submitted Briefs
1981.
July
Decided
2. Whether the court exceeded apportioning ranch water the parties’ property rights. order. Whether the court erred in its child support in verbatim the
4. Whether the court erred adopting fact, of dissolutiоn conclusions of law and decree counsel. proffered by Gary Jensen’s of counsel and find We have reviewed the record and argument of the District no reversible error. We affirm the Court. judgment were married in 1959. Four children Sabre Gary Jensen Melinda, 1959, Eric, 1961, in were born to them: in Douglas, 1963, entered into Jennifer, in 1967. At the time Jensens owned little property. Through their marriage, they personal however, of their own efforts estate with combination years, from Gary’s parents, acquired approxi- planning gifts Jensens Stevensville, The land near Montana. 255 acres of ranch mately lived on this ranch and until Gary supported Jensens family by maintaining hay/cattle operation place aas ranch hand working on his as a parents’ Sabre worked placе. wife, affairs, rancher’s managing household for the caring children and on the working ranch when needed. accident,
In was in a Gary seriously injured motorcycle resulting permanent partial This accident ended paralysis. Gary’s work on his ability effectively own and his parents’ ranches. was classified as Gary totally disabled permanently the Social Administration. Security Since the time of the acci- dent, Gary received a social security disability payment Jensen children, $229 monthly. Melinda and Jensen Jennifer receive social $50.40 benefits of security In order monthly. accident, supplement income family after the Sabre Jensen went to clerk, work as a dental receptionist grocery earning $650 approximately monthly. Gary Sabre and the separated dissolution of *3 was
marriage initiated. were They unable to on a informally agree fair division and property the amount of child Gary should as pay Sabre custodial parent. Two were held in hearings evidence, which the District Court received conflicting ranch’s value and to care Gary’s ability for himself and earn a living. Following court asked hearings, counsel for both fact, to submit parties conclusions of law and court, briefs to the supporting an equitable division of regarding and order for child property The court support. received proposed conclusions from adopted fact, law conclusions of and decree submitted counsel. by Gary’s These and conclusions that the acre provided 255 ranch $244,600. was worth would rеceive Gary 149 acres approximately ranch, most of the including land and prime irrigable hay barns, acres, while would Sabre receive 106 includ- approximately ing house well. The water to the land were divided rights and easements were to allow access to the divided provided par- car, cels. was Sabre awarded the home family furnishings $30,000. common stock valued at was approximately Gary awarded farm equipment, livestock registered and his brand personal possessions. The decree further provided con- Gary tribute to Sabre a sum equal social security disability pay- ments for the minor children’s support.
I. PROPERTY DIVISION:
In her appeal, Sabre asserts the District Court erred by worth, failing determine the properly net by improperly Jensens’ the ranch dividing property water rights into by taking account the between the relationship ranch operation Jensens’ ranch adjoining operated by Gary’s We parents. disagree. action taken the court was well within its and the power wide discretion to the district given court to resolve property divisions:
“A District
has
discretion in
far-reaching
resolving prop-
divisions, and its
erty
will not be altered
judgment
unless a clear
(Citations omitted.)
abuse of discretion is shown.
The test for
the District Court’s discretion is:
reviewing
Did the District Court
in the exercise of its discretion act
without
arbitrarily
employment
of conscientious
or exceed the bounds of
judgment,
reason in view
(Citations omitted.)
of all the circumstances?”
In Re Marriage of
(1979),
Mont.
600 P.2d
St.Rep.
Jacobson
case,
In this
thе court was amply
with evidence of
presented
the current value of the
assets and
parties’
included
properly
its
determination of the
values in its
property
findings,
required
(1978),
under In Re Marriage Brown
587 P.2d
361,
Sabre attacks division it property by labeling inequitable. division not so inequitable here it amounts to an abuse Dickerson, discretion reversible error. As we explained supra: were
“Substantially inequitable divisions reversed property by (1977), this Court in In Re 173 Mont. Marriage of Berthiaume 1388; Brown, Brown, 567 P.2d and In Re Marriage supra. $25,000.00 District awarded the wife for her interest in a $350,000.00 ranch, Berthiaume, marital asset. In major District Court found that the marital should be parties’ property divided, but the court awarded equally husband over 17,000.00 $ marital awarded the wife less property than $1,000.00 of the Both decrees were property. property held to be and were reversed.” substantially inequitable the District Although Court did not divide the parties’ property equally, division is not property substantially inequitable. The court did not err reversibly by awarding more valuable Gary (irrigable) ranch land adjoining At parents’ property. the time of dissolution was hearings, with his Gary living and was parents cared for them. He himself as a supported by working part-time division, ranch hand on the two ranches. This which takes into account does not “exceed the Gary’s disability, bounds of reason in view of all the circumstances.” Jacobson, supra.
Sabre further attacks the water rights
division con
property
the District
tending
Court lacked the
to divide the
power
existing
water rights. She
argues
a water
alone has the
judge
power
make this
We
division.
do not
agree.
water
Although
judges
have exclusive
over the
jurisdiction
determination and interpreta
tion of
water
existing
district
rights,
original juris
diction in dissolution of marriage
and is
proceedings
required statute to dividе and
all
distribute
marital
involved
property
See,
3-7-501, 3-5-302,
water
including any
rights.
sections
40-4-202,
See,
MCA. A water
is a
right
kind of
Brennan
property.
(1936),
v.
II. CHILD SUPPORT:
We find no reversible error in the District Court’s child
award.
we
support
believe it is
Although
firmly
moral
legal
children,
of
duty
their
our
parents
support
statutes
place
burden of
amount of
determining
proper
support upon
See,
40-4-204, MCA;
District Court.
section
State ex rel.
v.
Lay
(1948),
61,
District Court
122 Mont.
III. USE OF PROPOSED FINDINGS BY THE COURT: error,
In her final Sabre the District specification argues fact, Court erred by adopting of law and decree submitted that a counsel. She by Gary’s suggests lower standard for review should exist for the review of findings and conclusions drafted than counsel exists under the “clearly 52(a), erroneous” standard of Rule M.R.Civ.P. We decline to adopt v. Schwitzer-Cummins Co. suggestion. Schilling (D.C.Cir. 1944), Miller F.2d addressed this precise Justice reasons for courts suggestion persuasively explained allowing to ask for counsel’s assistance of fact and con drafting findings clusions of law:
“Whatever be the most commendable method may preparing — alone, whether or with the assistance of his by judge his law clerk and his or from a draft reporter, secretary, — case, submitted counsel well depend upon judgе, and facilities available to him. If result from inadequate findings — reliance drafts or from improper upon prepared by any — result and that is other cause it not the source objection- able. It is no more to tell a trial he must refrain appropriate counsel, from or the assistance of able using requiring preparing than it would be to tell he must an findings, appellate judge write his without aid of briefs oral opinions argument.” Our test for of fact is whether adequacy ultimate they are sufficiently to the issues to comprehensive pertinent decision, a basis whether are provide supported by evidence presented. *6 (1981), 508, 536,
In Tomaskie v. Tomaskie P.2d 625 we St.Rep. of wholesale disapproved adoption proposed submitted findings a a by Suсh party. lead to practice may error. See, Beck, 81-286, Beck v. P.2d Cause No. Decided July 1981 in however, this Court. Once are findings 52(a) adopted applies to them on appeal, and there is no reason in the Rules or otherwise to such give adopted lesser degree of weight, once since signed by the district judge bear the imprimatur of court.
The of fact and conclusions of law here entered by court are and comprehensive supported by evidence. They contain no clear error. of the District judgment affirmed. DALY,
MR. HARRISON and WEBER concur. JUSTICES MR. SHEA concurring: JUSTICE I Although agree affirm I nonetheless judgment, express my the trial court’s disapproval verbatim the adoption pro- and posed conclusions submitted counsel for the by wife, howevеr, husband. Counsel for the raises this issue for the therefore, first time on and appeal, the context of her failure to this raise issue the trial after it court verbatim originally adopted conclusions, would proposed findings I not reverse on this However, (other no reason ground. absolutely exists than judicial all) which is no reason Court to tolerate expediency, of a court simply rubber-stamping proposed and conclusions submitted counsel for the winning party. after the
Procedurally, trial ended and both sides had submitted conclusions, their proposed findings the trial court adopted husband, verbatim those proposed was judgment entered The wife then accordingly. moved the trial court to amend its and conclusions in certain but she did particulars, not then that the trial complain court had verbatim those adopted find- ings proposed by husband. The trial court failed to act on the directly wife’s amendments because proposed therefore, time went by without decision and under Rule 59(d), however, the motion was deemed denied. It appears, that the wife’s counsel did he could to everything the trial court get to act amendments, on the but did not affirm- act. atively
If the wife had raised the issue before the trial court and it should complained not have verbatim the adopted conclusions, husband’s this case would be in a different procedural perspective I believe that appeal, basic would dictate that judicial policy the case be vacated and remandеd so that the trial court could enter its own different, conclusions. It well be the result would be no *7 but this Court should not tolerate a of the decision-making process District which consists of the wholesale entirely of adoption the and conclusions of the winning party.
I do not believe that anyone would or should tolerate a practice of this Court of a an reaching decision in and then appeal directing counsel for the an winning party prepare for the opinion members of this Court to Nor do I think sign. would or anyone should tolerate the aof trial court procedure verbatim the adopting and conclusions of the In both winning party. situations, the judicial process is demeaned. addition,
In I that emphasize v. Schwitzer-Cummins Schilling (D.C.Cir. 1944), Co. 142 F.2d cited and in thе main quoted must be opinion, considered in the context of what in happened First, that case. Several factors are pertinent. court wrote a ended, memorandum after the trial preliminary for the holding defendant, facts the were stating by contended the essentially defendant, and then directed counsel for defendant to the prepare Second, a conclusions. of does not reading Schilling disclose that the trial court verbatim the submitted find- adopted conclusions, Third, it ings be inferred. although may perhaps relied, extent, the to a plaintiff large certain evidence to support case, memorandum, its in but the trial court held he excluded consideration, this evidence any from and the court appellate the trial court on this upheld issue. Needless to say, certain facts contended when plaintiff evidence is evaporate supporting Fourth, excluded. properly and most nowhere in important, opinion did the court of wholesale of approve adoption pro- posed conclusions presented by party. winning integrity the judicial process cannot be aif trial upheld court is free verbatim adopt conclusions pre- fact, sented winning party. Canon of the Canons of Ethics, construed, fairly does not permit such practice. Judicial The first paragraph Canon states: cases,
“In of controverted should indicate the disposing reasons action an has not dis he opinion showing serious regarded arguments or overlоoked of counsel. thus He case, shows his full of the avoids the understanding suspicion conclusion, arbitrary confidence his intellectual promotes integ contribute useful law.” rity growth precedent Mont. xxii-xxxiii. Canon 19 would substance if this stripped Court held it court, applied only written decisions of but not to written — of a trial court both accomplish —, same result both decide the case. Verbatim adoption pro- posed conclusions of cannot winning party help but create a belief that the trial did have a under- not full of the case and that standing it reached an conclusion. arbitrary does it not confidence in the Certainly intellectual promote integ- *8 of'the trial I view the rity courts. of verbatim parroting and conclusions no than I would view differently 256 for the win- if were written
an of this Court it opinion and it be factually The party. opinion may supportable, ning sound, nor the would public be but neither losing party legally if it were to such adopt have confidence in an appellate any have any or the public Nor should the losing party practice. find- rubber-stamps proposed in a trial court that confidence of the winning party. ings OF FINDINGS OF FACT THE PURPOSE First, assist the trial of fact serve three purposes. Findings does fact-finding careful court in adjudication process from the a trial court from “shooting or least should prevent see, v. States Law Review 14. Also United I San hip.” Diego Second, (2nd 1942), of fact F.2d 125 Forness Cir. or res issues of by Judgment “serve other courts where estoppel at a based on later court lоoking judgment are involved. A judicata decided, and this what was such must know precisely alone ...” 1 San Diego judgment cannot be determined Third, “inform the court of appeals the findings Law Review 14. Law Review 14. Diego the basis of the 1 San judgment.” whether trial courts should then becomes one of question enter this three-fold purpose, simply in fulfilling permitted, own, and conclusions proposed by their demands that for the judicial process party. Respect winning answer be no. THE TRIAL COURT REQUIRING
POLICY REASONS FOR AND CONCLUSION- FACT-FINDING ITS OWN TO DO MAKING.
I first that this expressly disapproved emphasize and conclusions of the winning verbatim parroting (1981), Tomaskie v. Tomaskie 625 P.2d party. 416; Beck, (Decided In Re St.Rep. P.2d 282. Marriage July 9, 1981, 80-286), Cause No. cited in the main Tomaskie opinion. cited Canon as one of the reasons why practice wrong. Tomaskie,
Beyond Canon what we said in beyond *9 judicial dictates that the polity should be practice forbidden. In (2nd 1942), 928, United States v. Forness Cir. 125 F.2d cert. den. 316 U.S. 62 S.Ct. 86 L.Ed. Frank stated Judge that this is an abdication of the great powers reposed the trial courts. He stated: be,
“The correct as as near of the facts finding, of the law may suit is as fully as the of the important correct rules legal application to the facts as found. An rule impeccably ‘right’ legal applied facts ‘wrong’ yield decision which is as as one which faulty results from the of the rule application to the ‘wrong’ legal ‘right’ error, indeed, facts. The latter of type can be corrected on appeal but the former is not subject such correction unless the appellant overcomes the burden of heavy that the showing of fact are ‘clearly erroneous.’ Chief once remarked Hughes ‘an Justice unscrupulous administrator might ‘let me find tempted say the facts for the of people my and I care little country, who lays ” down the general That comment principles.’ should be extended to include facts found without due care as well as unscrupulous for such lack of fact-finding; due care is less to reveal likely itself which, trust, than lack of scruples, we seldom exists. And Chief comment is Hughes’ as just to the careless fact- applicable Justice of a finding to that of an judge,as administrative officer. The judi- ciary holds properly administrative officers to standards in high discharge function. The fact-finding should at judiciary least measure to the same standard.” up 125 F.2d
Because of thе great
in the office of a trial
power residing
judge,
role
is a
fact-finding
which
heavy responsibility
must be
with the
engaged
greatest
care.
Frank continued:
Judge
“The trial court is the most
important
agency
judicial
branch of government precisely because on it rests the responsi-
bility
ascertaining
facts. When a federal
sits without a
judge
jury,
is his.
responsibility
And it is
a not
light responsibility,
since, unless his
are
erroneous,’
‘clearly
no
upper
disturb
them. To ascertain the facts is not a mechanical act. It
art,
is a difficult
not a science. It involves skill and
As
judgment.
human,
is a
fact-finding
can,
course,
it
undertaking
never be
reason,
perfect
infallible. For
effort should be
very
every
(Footnotes
made to render
as
as
it
it
can be.
adequate
humanly
omitted.)”
federal trial insofar as judge their role a fact-finder is concerned. Forness, What was said in supra, equal application role then, of a state trial judge. If state trial are to have this vast judges (and it), power have they surely does it not make sense that the trial does the fact-finding rather than conclusion-making, counsel for the winning party?
If a trial court the rubber-stamps the presented by winning I believe it to be an party, abuse of the judicial power. the Although his name judge signs to the findings conclusions, it is indeed winning who disposed the case in a manner that he thinks will be most advantageous to his client and lease to successful subject attack on If it is for appeal. counsel to propоse the trial courts to it demeans the dispose, judicial to have process counsel for the to do winning the party fact-finding conclusion-making. (1978), Ballantyne v. Anaconda Co. 574 P.2d Court, in that it is of holding utmost for importance the decisions, courts to set out the reasons for their quoted from
West, The (1965). State Trial Book Judge's The behind policy out setting the reasons a decision well to applies equally the policy the trial court requiring to do its own fact-finding We stated: conclusion-making.
“When the time comes to a written prepare of the exposition decision, basis for a has a judge task on his hands. heavy He well, feels the need his to do to the to himself part injustice parties, and to the he position will write better occupies. judge if he оpinions considers some of the are important purposes they intended to serve. A well-considered can be of value to opinion himself, to counsel and judge It is invaluable to the parties. court, if the case appellate goes up appeal.
“The function of the is to state opinion the reason which led the Moreover, court to decide the case the it did. since in way process an preparing opinion must judge discipline he is thinking, more to a reach decision in a apt just case if complex he reduces his to reasoning writing. commented,
“Chief once ‘The Hughes importance Justice written carelessness is protection against judicial opinions very great.’ to service counsel in
“Oрinions may
great
litigants
what
determining
their future course should be. The opinion may
event,
to an
or it
eliminate
point
way
one. In either
appeal,
value to those most
concerned
practical
great.
is of
assistance to
appellate
“A well-stated opinion
great
as a
followed
reasoning
judge
court
chart
old
a decision. Not
would
with
everyone
agree
cynical
reaching
as the
is credited with
‘Asfar
appellate
who
saying,
concerned,
my
can think
reason
they
good
maybe
up
”
a bad
don’t want to
them
one.’
Mont.
give
I
judgment.
409,
The basic out set in the State Trial policy Book Judge’s quoted Ballantyne, of fact and applies equally conclusions of law. If the of fact and conclusions of law arе counsel for the prepared entirely of what winning party, value are to the or an losing party, public, *11 appellate True, court? decide the case once the trial they his judge signed name to them. But state how the they counsel for only winning reasoned, case, and what counsel about the party thought not assume, what the trial court about the case. Is it fair to thought then, that counsel for the did for the winning party thinking is, trial court? I believe it because there would be no simply from the that indication record the trial court independently law, examined the evidence and the then arrived its own and conclusions. findings 52(a) CONCLUSIONS AND UNDER
FINDINGS RULE 52(a), M.R.Civ.P, Rule the By to make duty findings and cases, conclusions in on judge-tried the trial clearly imposed court. The rule states:
“In all actions tried facts the without a or with an upon jury the court shall the advisory jury, and state specially find facts thereon, its conclusions law separately shall be judgment of 58; entered to Rule and in or pursuant granting refusing the court injunctions shall set forth the interlocutory similarly of fact and of law findings conclusions which constitute the grounds of its action. are not Requests findings necessary for for review. of fact shall not be set aside purposes Findings unless of erroneous, and due shall be to the clearly regard given opportunity the trial of the judge credibility witnesses. The master, them, of a that extent the court adopts shall be as considered of the court. an or memor- opinion If andum decision is it filed, will the findings sufficient if offact Findings law therein. of fact and appear law conclusions of are or unnecessary under Rules 12 56 or any 41(b).” added.) other as motion Rule except provided (Emphasis 52(a), Rule it is the the trial enter By court to its duty cases, and conclusions in even if does not judge-tried party request to make certain review is findings, judicial Further, 52(b), nonetheless Rule available. it although permits motions request of the or to amendment make additional does not be done findings, require before has a party right to of the challenge appeal sufficiency clear, therefore, evidence to It is that the trial support findings. courts cannot foreclose one from challenging sufficiency evidence to even has neither findings, though party certain to be made nor moved to amend requested mаke or to additional findings. 83, M.R.Civ.P., district courts to local permits promulgate as Rules of Procedure long rules addition Civil practice It with of Civil Procedure. appears are consistent the Rules all, courts, local if not have promulgated district many counsel, case, call at the conclusion rules which
261 and proposed submit conclusions. is Usually, party each so after given the trial within which to their many days present and I see proposed conclusions. with these nothing wrong rules as as do long not contain sanctions the any affecting 52(a) (b), right of Rules would appeal. clearly prohibit any such sanctions. That so because duty fact-finding unconditionally conclusion-making trial court imposed therefore, Rule The act failure of cоunsel to cannot relieve the — district courts of their affirmative that is duty act to enter and conclusions. 52(a) The language Rule “the court find shall the facts and state its law specially conclusions of ...” separately thereon Tomaskie, means what it exactly says. In this supra, Court frowned on the of a trial court’s practice verbatim the adopting and conclusions of All of winning party. Federal Circuits have on this frowned with the exception Ninth Circuit. San Law Diego Review 14. In Federal interpreting 52(a), (3rd 1965), in the Court Roberts v. Ross Cir. 344 F.2d 747, held that its purpose:
“. . . is to require trial to formulate and articulate his of fact and law conclusions of the course his consider- ation and determination of the case and as of his decision part so that he making proсess, may himself be satisfied that he has dealt with fully properly all issues in case he before decides it so that the parties involved be informed fully to the bases of the decision ...” F.2d at 751.
The court held that trial does not fulfill this function when it verbatim the adopts conclusions of proposed findings the winning party. (Alaska 1962), Merrill v. Merrill 368 P.2d the Alaska 52(a),
Supreme held under Rule cannot duty fulfilled if the trial court merely adopts winning must party. judge himself make the assure:
“. facts, . . that he has exercised care ascertaining *13 in reducing thoughts both skill and judgment employed while the evi- matters and findings contested to precise pertinent at is still fresh in his mind.” 368 P.2d 548. dence of a trial verbatim the propriety adopting and conclusions of the is annotated in findings winning party, A.L.R.3d 868: and Trial Court’s Propriety Adopting Effect of of This annotation covers Findings Prepared by Prevailing Party. stаte annotations of courts. Needless to the decisions only say, go direction, is and for of reasons. It safe to every variety say, however, that states as have tolerated the although many practice, none have recommended it. preferred practice, the anno- which disapprove practice,
In those jurisdictions for disapproval: tation summarizes the reasons cases, however, have registered disapproval number of “A for the party, prevailing of findings prepared by practice with the making findings, statute concerned both from any apart to ver- with regard from and under such statutes. Apart complaints content, lineaments of counsel-drawn often and bosity improper (1) have three bases: preparation criticisms seems to findings, (2) adjudication; aids in the process [by findings court] <?f function, the should findings judicial nature of proper very (3) the statute concerned applicable be those of trial judge, was that the thereof duty indicated with of findings preparation A.L.R.2d that of the trial judge.” (in concerned, reasons addition all three of these far as I am As mentioned) in this state to a determination apply have others I party’s proposed prevailing verbatim parroting 52(a), conclusions, supra, not be should permitted. to make findings on the trial the duty imposes unequivocally Further, that the function such the judicial and conclusions. so, not the judicial and if of the judge, should be those of adjudication process demeaned. The has been process own its entering trial court’s aided undeniably conclusions.
THE ROLE OF COUNSEL IN PREPARATION OF FINDINGS AND CONCLUSIONS stated,
As I previously counsel should have if the input trial court it, desires conclusions, proposing findings and as those long conclusions proposed, are used as a guide the views Tomaskie, taken by counsel. opposing we stated what supra, we thought role of counsel and the trial court to be in relation to conclusions: “ . . . It is wise trial court and file its prepare own conclusions. in that can Only fashion the parties know that the trial court has considered all of carefully the rele- however, vant facts issues involved. This is not to say, that the *14 trial court shouldn’t have the from on guidance lawyers both sides. guidance But in an adversary system always such the find- and ings conclusions not indicatе a may treatment of the thorough fact and law to be But and applied. findings conclusions proposed the trial give as judge good insight what factors the just parties deem to be It is then to the trial important. up translate his judge own and conclusions into judgment and appropriate findings conclusions. Court, however,
“It is to this becoming increasingly apparent that the trial courts too on the and heavily rely See, submitted the That by winning party. wrong! 19, Ethics, at Canon Canons of xxvi-xxvii.” Judicial decisions, Federal even of though verbatim disapproving parroting prevailing and party’s proposed findings conclusions, have also a vital role of recognized counsel in their submitting suggested conclusions to the trial court. But have also recognized fundamental and non delegable court to do his own duty fact-finding See, Ross, Roberts v. conclusion-making. example, supra, 752-753; F.2d at Louis & CIE v. Panama Canal Dreyfus Company (5th 1962), 733, 737-739; and, Cir. 298 F.2d Mesle v. Kea (3rd 1958), Cir. F.2d at 750. Steamship Corporation Ross, the Court to the issue of the use of spoke directly and conclusions counsel: presented by Mesle, now,
“. .. We did not then and we do not mean supra] [In that a trial should suggest not have the to invite judge right counsel for both to submit to him parties fact law, briefs, them, and conclusions of if he desires accompanied by to assist him in his own and conclusions and formulating his decision. In the reaching the facts process studying law, and conclusions formulated and proposed by parties be most may helpful the issues judge sharpening serve useful him in very purpose aiding drafting оwn and conclusions ...” 344 at F.2d
However, even if the findings out that also pointed sufficient, counsel are by conclusions prepared basis for the the evidentiary scrutiny could closer trigger decision:
“ and conclusions that findings it should be remembered . . . But change trial court without a party adopted prepared by more narrowly to be looked appellate are likely are the work produced review than if they less weight given he has them evidence that given or at least bear himself judge would assure latter and revision. For the procedure careful study court, out in Louis Dreyfus Wisdom pointed Judge appellate 1962, 298 F.2d 5th Canal Cir. Company, & CIE v. Panama all the factual consider did indeed ‘that that each word in the and would guarantee questions thoroughly *15 at 752. (Emphasis chosen ...” 344 F.2d is finding impartially added.) futhermore, made, be between many
A distinction should which to be most prevalent cases and the seems federal procedure of the federal decisions involve situations where in this state. Many and has filed a memor- has announced his decision the trial then counsel forth his basic conclusions. He directs andum setting to draft and conclusions for the prevailing party I do not think this practice accordance with those views. Although either, at least it shows that good thte federal court has reached the basic decisions of who the is and what the prevailing party basis of the decision is. even this But fails to practice recognize fundamental importance in the fact-finding decision-making process, to first opposed decision and then reaching making state, those line with the basic decision. In this up for the most part, trial at the conclusion of the judge, case, to such counsel give time to present proposed findings conclusions before the decision is reached. Nor do I believe this is method preferable handling proposed findings conclusions.
A SUGGESTED PROCEDURE FOR A MORE EFFECTIVE USE OF PROPOSED FINDINGS AND CONCLUSIONS.(cid:127) THEY SHOULD BE SUBMITTED BEFORE THE TRIAL BEGINS
Whether the trial courts conclude the trial and then each give conclusions, party time to or present proposed whether that conclusions should expect trial, to the court at the conclusion of the each presented proce- dure fails to make the most effective use of the work of counsel in Rather, and conclusions. prеsenting proposed findings court should require present proposed findings trial, if, conclusions before the trial At the conclusion of the begins. for some reason counsel feels his conclusions should be amended or the trial court should them time supplemented, give to do so. But the trial court should have the proposed before the so that it can use them begins during the course of the trial. Carter, is not novel one. M. then a
My suggestion Judge James California, United States District for the District of Judge Southern Fact, one of the authors of 1 San Law Review Findings Diego in 1964. trial courts suggested procedure Undoubtedly many the nation follow this throughout procedure. sug- procedure is: gested
“Various have that a judges suggested requirement both their sides submit fact and conсlusions of law *16 case, before the trial starts would be in the trial of a helpful civil a one. this particularly complicated If under practice adopted, each proposed counsel should set forth in finding supporting a) witness, b) the name of the a proposed finding: of the summary witness, c) of the the documents proposed testimony to be offered in for the findings, attaching copies inspection court.
“Such a would seem beneficial in a in ful- case complex filling purpose outlined above. F.R.Civ.P. 52(a) that the court find facts suggests and state its conclu- sions of law which is prior entering judgment, certainly logical It would that if the approach. are sub- appear proposed findings evidence, mitted the court prior receipt could more easily determine the factual issues while the is quite evidence fresh.” added.) (Emphasis
These a far suggestions by Carter are method of Judge preferable the most effective use of making conclu- proposed findings fact, on, sions. In while the trial is well going judge may use the as a checklist against heard, evidence and the trial well the course of judge may during trial, make comments will aid him in preliminary finding the facts and the ultimate reaching decision. It would not then be a determinations, task difficult to convert his own his own thoughts, into of fact. The same meaningful could be used procedure for the of the law which application opposing suggests could The trial could at least be apply. making preliminary determinations, trial, the course of as to which law during should and how to it. The of tentative apply, apply process conclusions, trial, the course of the taking place during course, decision, before the always, being subject change should be of immense aid in both coming speedy just decision.
I also the use of two suggest more that would aid procedures and aid this decision-making review. process appellate First, cases, invoked in although procedure rarely judge-tried 16, M.R.Civ.P., contained in Rule pretrial procedure provisions should be used more often. In with conjunction invoking pro- *17 cedure, there is no reason the trial courts could not initiate a why that in an con- directing procedure attorneys get together attorneys ference to sеe what can do that in terms of so they agreements they can a more streamlined case to the trial court. Creative use present of Rule combined with the other trial courts under power Rule can be utilized to facilitate the greatly decision-making — process resulting both in faster decisions and in better decisions. Second, I believe that the trial courts too overlook the frequently — alternative to separately conclusions stating that of a memorandum writing of decision the find- incorporating and conclusions in the memorandum. ings This is expressly per- 52(b), mitted find that a M.R.Civ.P. I memor- Frequently, decision, andum of all the incorporating conclusions that memorandum serves as a better as to how the guide just addition, trial court reached its deсision. In I believe that even if the trial courts state of fact and separately state separately 52(b), their conclusions of law as for in Rule a memoran- provided dum the reasons for explaining their decision is of great help parties to this certainly Court. Often and conclu- barren, sions are so cold this Court no they really give as to what the trial insight about the really thought case. Tomaskie, that if I would read hope judges supra, they are now aware that this does not of the verbatim approve adoption proposed by If, however, continues, I prevailing party. hope this Court meets the issue head-on and either tells the trial courts can do it or that they cannot do it. By separate concurring opinion, my stated. position