                                                     No.     85-196

                      I N THE SUPREME COURT O THE STATE O M-ONTANA
                                             F           F

                                                           1985




STATE O N R H DAKOTA,
        F OT                                ex rel,
B.J.D.,  an I n f a n t ,

                           P e t i t i o n e r and. A p p e l l a n t ,



S. P .       R.,

                           R e s p o n d e n t and Respond.ent.




APPEAL FROM:               D i s t r i c t C o u r t of t h e T h i r t e e n t h 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 County o f Y e l l o w s t o n e ,
                           The H o n o r a b l e W i l l i a m J . S p e a r e , J u d g e p r e s i d i n g .


COUNSEL O RECORD:
         F


                 For Appellant:

                           H a r o l d F.   Fanser,        County A t t o r n e y , B i l l i n g s , Montana


                 For Respondent:

                           G e r a l d Neel-y, B i l l i n g s , Montana




                                                           S u b m i t t e d on B r i e f s :   Sept.    1 9 , 1985

                                                                                Decided:        December 1 0 , 1985



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                                                                            I

                                         L s 22& &4
                                                           Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

        In    the   action       below,       the    State    of    North        Dakota
initiated this action to obtain a declaration of paternity
(Uniform Parentage Act, 5 40-6-101, MCA, et seq.) and to
obtain child support (Revised Uniform Reciprocal Enforcement
of    Support Act        (RURESA),         S 40-5-101, MCA, et          seq. )     from
respondent      S.P.R.,        the    putative        father,      on   behalf      of
petitioner C.D., the natural mother of the minor child.                            The
District      Court      of     the        Thirteenth       Judicial      District,
Yellowstone County, sitting without a jury, the Honorable
William J. Speare presiding, found that: (1)                       respondent was
the natural father of the minor child; (2)                         respondent was
obligated to provide child support and medical insurance for
the   minor     child; but          that    (3)     North    Dakota's     requested
reimbursement from the respondent for public assistance paid
to the natural mother, medical costs for the minor child and
blood    test    costs     associated         with    establishing        paternity
should be       denied because North              Dakota failed to present
competent evidence to establish a basis for the court to
order these payments.                From this judgment the petitioner
appeals.
        The judgment of the District Court is affirmed in part
and reversed in part, and this case is remanded for a new
hearing consistent with this opinion.
        In September, 1982, the State of North Dakota filed an
initiating      petition       in    Yellowstone       County      alleging       that
respondent was the natural father of B.J.D.,                    who was born on
December 19, 1981.            The record indicates that respondent and
petitioner were never married, and that B.J.D.                      was conceived
in Billings where respondent lives.                   The mother subsequently
moved to North Dakota where B.J.D.                was born.
       In June, 1983, a petition to establish paternity and
provide child support was filed by the Yellowstone County
Attorney's Office on behalf of the petitioner.                  It should be
noted that medical costs for the minor child were not pleaded
as damages.
      Thereafter, the respondent filed a response to the
petition, and the District Court ordered that blood tests be
performed    on   the   parties    to   help    resolve the        issue of
paternity.     The blood tests resulted in a 93.8% likelihood
that respondent was the minor child's father, and during an
informal hearing held in August, 1984, respondent admitted
paternity.     Also during this informal hearing, the District
Court recommended to the parties that respondent provide
child support and medical insurance for the minor child, but
that no medical costs, paternity blood test costs, or public
assistant payments       be   reimbursed       to the    State of North
Dakota.      These recommendations were not acceptable to the
State of North Dakota, so the matter proceeded to bench trial
on February 2, 1985.
      During trial-, the following facts pertinent to this
appeal occurred.        The Yellowstone Deputy County Attorney,
Terence Swift, acting as counsel for the petitioner, called
the respondent, S.P.R.,         as his first witness.             Mr. Swift
proceeded to hand the respondent a document, and asked him
whether he understood the figures contained in the document.
Respondent's counsel immediately objected on the grounds that
the document had not been admitted into evidence, was hearsay
evidence, and it lacked proper foundation.                This objection
was sustained by the trial court.          At this point, Mr. Swift
moved to introduce the document as "Petitioner's Exhibit 1 as
a   certificate    of   money     reimbursements        which    are   being
requested for reimbursement by the State of North Dakota."
Respondent's counsel again renewed his objection that the
document was hearsay, and again the trial court sustained the
objection, over the heated protest of Mr. Swift, and did not
allow the document into evidence.
       The subject document presented to the District Court
for admission by Mr. Swift was in fact an affidavit of Gary
Kiner, a Welfare Administrator for the State of North Dakota.
This affidavit set forth the monies expended by North Dakota
on   behalf      of   the   minor   child,      B.J.D.       This    affidavit

indicated that North Dakota had expended $180 for blood test
costs and $9,471 for support and care of the minor child.
      Following        trial,    the    District       Court      ordered   the
respondent to pay $1.00 per month in child support and also to
provide the minor child with medical insurance.                   In addition,
the District Court specifically denied the State of North
Dakota    any    reimbursement from           the    respondent     for public
assistance paid to the natural mother, medical costs for the

minor child and blood test costs associated with establishing
paternity stating that no competent evidence was presented by
the petitioner at trial to establish a basis for the court to
order these payments.
      The petitioner presents the following issue for review
by this Court:

         (1)    Whether the trial court erred by refusing to admit

the Affidavit of the Welfare Administrator showing what funds
had been expended by the State of North Dakota on behalf of
the minor child.
      The      respondent, presents           this    additional    issue   for
review:
         (2) The      trial   court     did     not    err   in    disallowing
reimbursement to        the     State   of North       Dakota     for medical
expenses provided to the minor child because such expenses
were not pleaded as damages by the petitioner.
         First, with regard to the single issue raised by the
petitioner, we hold. the District Court properly refused to
al?mit     into     evidence       the   affidavit     of   the     Welfare
Administrator showing what funds had been expended by North
Dakota on behalf        of     the minor    child.      The trial judge
properly concluded the affidavit was excludable as hearsay.

         Initially, it must be noted that the present action was
governed by the Monta.na Rules of Evidence.            Section 40-5-124,
MCA, provides that:
             In any hearing for the civil enforcement
             of this part (RURESA), the court is
             governed   by   the rules of evidence
             applicable in a civil court action in the
             district court.
         We hold the offered affidavit was excludable as hearsay
under Rule 801(c) and 802 of the M.R.Evid.             Our conclusion is
based upon the fact that the offered affidavit was made by a
declarant     who    was     not    available   for    cross-examination
purposes.         The   opportunity       for   an    adverse     party   to
cross-examine a declarant is the basic reason for excluding
hearsay in our judicial system.             In the instant case, the
respondent was not given an opportunity to question the
FJelfare Administrator about the authenticity of the figures
contained in his affidavit. Furthermore, this Court holds
that the subject affidavit does not fit within any of the
hearsay exceptions provided in Rule 803 of the M.R.Evid.,                 as
the petitioner suggests.             Therefore, we hold the District
Court properly excluded the offered affidavit as hearsay.
         However, although this Court holds that the subject
affidavit was properly excluded from evidence by the District
Court, we also note that RURESA specifically allows a court
to accept deposi.tions of public officials to establish an
obligor's duty of support.           Section 40-5-121, MCA, provides:
            If the obligee is not present at the
            hearing a.n.d. the obligor denies owing the
            duty of support alleged in the petition
            or   offers   evidence   constituting   a
            defense, the court, upon request of
            either party, may continue the hearing to
            permit evidence relative to the duty to
            be adduced by either party by deposition
            or by appearance in person before the
            court. The court may designate the judge
            of the initiating court as a person
            before whom a deposition may be taken.
Therefore, in light of this statute, this Court ho1d.s that
the present case should be remanded for a new hearing to
allow the petitioner the opportunity to take the deposition
of a North Dakota official who is familiar with the duty of
support owed by the respondent.               This deposition will provide
competent evidence to the trial court to establish the amount
of money the petitioner claims the respondent owes to the
State of North Dakota.          Also, such a deposition will allow
the respondent the opportunity to cross-examine the North
Dakota official.        However, this Court further holds that the
scope of any deposition testimony taken of a North Dakota
official     will      be   limited      at    a   new   hearing   to     only
establishing the amount of money the State of North Dakota is
seeking for: (1) reimbursement of public assistance paid to
the natural mother, and            (2)    reimbursement of blood test
costs associated with establishing paternity.                The reason for
this limitation is explained in the discussion. that follows.
         Under   the    respondent's      single     issue   presented     for
review, he       submits that the trial court did not err in
disallowing reimbursement to the State of North Dakota for
medical expenses provided to the minor child because such
expenses were not pleaded as damages by the petitioner.                    We
agree.      The     petitioner's      petition,     which    was   filed    in
Yellowstone       County    District      Court    and   served    upon    the
respondent, did not plead any claim for reimbursement to the
State of North Dakota for medical costs associated with the
minor child.        It is a well-settled principle in our judicial
system that an item which is not pleaded cannot be obtained
at trial.      Therefore, as indicated in the discussion above
under issue number one, any evidence presented at a new
hearing will be limited to only establishing the amount of
money the State of North Dakota is seeking for reimbursement
of public assistance paid to the natural mother and blood
test   costs   associated with   establishing paternity.   The
findings of fact, conclusions of law and judgment of the
District Court are affirmed in all other respects and will be
carried forward to a new hearing.
       The final item that should be addressed by this Court
is that the respondent in his brief requests that he be
awarded attorney fees and costs for a frivolous appeal.    We
find the respondent's argument totally without merit and
hereby deny his request.
       The judgment of the District Court is affirmed. in part
and reversed in part, and this case is remanded for a new
hearing consistent with this opinion.
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