                                 No. 83-96
               IN T I SUPREME COURT OF THE STATE OF MOPJTANA
                   EE

                                      1984



LIMA SCHOOL DISTRICT NO. 12
and ELEPIENTARY SCHOOL DISTRICT
OF BEAVERHEAD COUNTY, MONTANA,
               Plaintiff and Appellant,


KENNETH SIMONSEN AND ANN
SIMONSEN ,
               Defendants and Respondents.




APPEAL FROM:    District Court of the Fifth Judicial District,
                In and for the County of Beaverhead,
                The Honorable Frank E. Blair, Judge presiding.


COUNSEL OF RECORD:
      For Appellant:

               P1.G.   Gilbert, 111, Dillon, Montana

      For Respondents:
               Thomas A. Dooling, Dillon, Montana
      For Amicus Curiae:
               Richard P. Bartos, Office of Public Instruction,
               Helena, Montana


                                                                   --
                                  Submitted on Briefs:   March 1, 1984
                                              Decided:   May 24, 1984


            2 4 !984
Filed:




                                  Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.

        The Lima School District No.          12 filed suit against
Kenneth and Ann Simonsen in 1979 to recover money paid to the
Simonsens under a transportation contract.                 The Simonsens
counterclaimed alleging damages resulting from prior acts of
the   School District and          the   filina of    the    suit.     The
Beaverhead County District Court denied the claim of the
School District and awarded the defendants $5,000 on their
counterclaim.       The     Lima    School    District      appeals    this
judgment.
        The defendants in this action own an isolated ranch in
the Centennial Valley thirty-five miles east of Lima, Mon-
tana.    This ranch is located in the Lima School District and
Beaverhead County.     The present controversy arose after the
Simonsens applied for and received $814.50               from the Lima
School District for transporting their two children during
the     1.976-1977 school    year.       At   issue   is     whether    the
Simonsens' ra.nch in the Centennial Valley is their legal
residence.
        Ann Simonsen was raised on the Centennial property.
She attended the nearby Doyle School which was closed by the
Lima School District for lack of school-age children in 1965.
The school. has not been reopened since tha.t date.
        The Simonsens received their interest in the ranch from
Ann Simonsen's mother in 1967.           The Simonsens do not live on
the property year round; snow closes the access roads in
winter and the county makes no effort to keep the roads open
due to the area's sparse population.
        The condition of the ranch, though not truly at issue
here, was described various]-y in the proceeding below.                Even
if the roads were kept open in winter, the property does not
provide what many would consider a suitable residence.        The
ranch is not serviced by electricity.       The Simonsens, during
their summer stays at the ranch have centered their living
around a self-contained camp trailer. There is a cabin on the
property, although the condition of this cabin was the sub-
ject of conflicting testimony at trial.
        The Simonsens maintain the Centennial property is their
home.    Ann Simonsen testified that she has never left the
ranch without the intention to return.        Ken Simonsen testi-
fied that he has lived and worked in Butte in order to subsi-
dize    the   ranch and has    continued   to work   on the ranch
whenever he was able to do so.      The Simonsens have run cattle
on the ranch in the summers although this was never a large
operation.
        In June 1976 Ann Simonsen applied to the Lima School
District for funds to defray the cost of school transporta-
tion for her children.       The Simonsens did not live on their
Centennial property that winter and school year.           Winter
closures of roads effectively barred the family from living
on their property and sending their children to the nearest
open school of the Lima School District.        During the school
year    in    question,   1976-1977, and   subsequent years, Ann
Simonsen lived with her children in Sheridan, Montana, in
Madison County.      Sheridan is located thirty-seven road miles
northeast of Dillon, the county seat of Beaverhead County.
Therefore, a transportation contract was entered into in
Beaverhead County, the professed county of residence for the
family, and the children were sent to school in Sheridan
within Madison County.        It was Ann Simonsen's belief that
money received from the Lima School District could be used to
defray the costs of boarding and sending her children to
school outside the District.
        After the 1976-1977 school year, the Lima School Dis-
trict paid Ann Simonsen $814.50          under the transportation
contract executed the previous summer.        The School District
alleges that this money was paid under the mistaken belief
that the Simonsens were legal residents of Beaverhead County.
        Ann Simonsen applied for a second transportation con-
tract preceding the school year of 1977-1978.         The applica-
tion for this contract was denied August 25, 1977, by the
Transportation Committee of Beaverhead County on the grounds
that Ann Simonsen was not a legal resident of the countlr.
        Ann   Simonsen   appealed   the denial of    the   1977-1978
transportation contract application to the Beaverhead County
Transportation Committee.      This appeal was filed on June 22,
1978.     The appeal was denied by the Beaverhead County Super-
intendent on June 28, 1978.         This decision was subsequently
appealed by Ann Simonsen on March 5, 1979, to the State
Superintendent of Public Instruction.
        While this case was being litigated through the admin-
istrative appeal process, a complaint was filed by the Lima
School District and its attorney, W.          G.   Gilbert 111,   in
Beaverhead County District Court.         The School District al-
leged in its complaint that $814.50 in transporta.tion money
had been paid to the Simonsens in 1977 by mistake.           It de-
rnanded judgment against the defendants for that amount plus
costs.
         This case was docketed by the Beaverhead County Dis-
trict Court as Cause No. 9285.         The Simonsens answered the
complaint and cross-complained alleging $10,000 in damages
due to the School District's denial of the transportation
contract, failure to provide a school and filing of its
complaint prior to exhaustion of the administrative appeal.
       Trial was held without a jury May 20, 1980.                   Findings
of fact and conclusions of law were entered July 29, 1980.
District Judge Frank Blair found that the Simonsens were
residents of Beaverhead County and they were entitled to a
transportation contract for the school year 1976-1977.                   After
finding for the defendants on the complaint, Judge Blair
noted that the plaintiff School District failed to present a
defense to the cross-complaint and entered judgment in favor
of the Simonsens, the amount of damages to be determined at a
later hearing.        Such hearing was held July 6, 1982 and a
damage award of $5,000 was made to the Simonsens in a final
judgment entered December 28, 1982.                 This judgment is the
subject of this appeal.
       While Cause No. 9285 was being litigated, the adminis-
trative appeal of the denial of the 1977-1978 transportation
contract progressed.       On September 4, 1981, after Cause No.
9285   had    been    heard   and        findings   entered,       the     State
Superintendent       of   Public     Instruction,       Ed     Argenbright,
affirmed     the Reaverhead      County Transportation Committee's
order denying the 1977-1978 transportation contract.                        The
Transportation       Committee     had     found    previously      that    Ann
Simonsen was not a resident of Beaverhead County.                   The State
Superintendent       of   Public     Instruction       in    his     decision
demonstrates the mistaken belief that the Simonsens were the
plaintiffs in the prior civil action, Cause No. 9285.                        He
notes that they had failed to exhaust their administrative
remedies prior to bringing that action.               The Simonsens were,
of course, defendants in Cause 9285.                  Under his mistaken
belief the State Superintendent of Public Instruction ruled
the prior Beaverhead County District Court order of Judge
Blair was not controlling in his review of the matter.
        A petition for review of the final decision of Ed
Argenbright was then filed by Ann Simonsen in the Beaverhead
County District Court.      This second case dealing with the
issue of the Simonsens' residency was docketed as Cause No.
9714.    The case was decided April 13, 1983 and Judge Mark
Sullivan affirmed the September 4, 1981 decision of the
Superintendent of Public Instruction.     An attempt to appeal
the judgment of Cause No. 9714 was untimely and this Court
denied the Simonsens' motion to file a notice of appeal nunc
pro tunc on October 24, 1983.
        Summarizing the a.bove discussion, we are presented with
two lawsuits.      Both suits hinged on the question of the
Simonsens' legal residency.    The two results are diametrical-
ly opposed.     However, the first suit, docketed Cause No.
9285, addresses residency during the 1976-1977 school year
for which the transportation contract was paid.    The counter-
claim of Cause No. 9285 and the second suit, Cause No. 9714,
addresses the school year of 1977-1978 for which a future
contract was denied.    Cause No. 9285 is currently before this
Court while Cause No. 9714 is not.


                                I

        The first issue to be decided is whether the Beaverhead
County District Court erred when it found the Simonsens were
residents of the county.      We preface our discussion of the
residency question by noting that technically we are only
reviewing the trial court's residency finding as it relates
to the 1976-1977 school year transportation contract.       The
decision of the administrative agency and its subsequent
affirmance in Beaverhead County District Court Cause No. 9714
concerned residency for purposes of the 1977-1978 school year
transporation contract application.             Since the decision in
Cause No. 9714 was later in time than the decision of Judge
Blair which we are reviewing, questions of res judicata are
not presented
       The parties basically agree on the appropriate law that
should be applied to the question of residency.                     Section
20-10-121 ( I - ) , MCA, provides that trustees of a school dis-
trict have a duty to provide transportation for all eligible
transportees whenever        transporation      is    provided      for    any
transportee.      The Lima School District has such a duty.               This
obligation by       the   terms of      subparagraph two of          section
20-10-121, MCA, can be fulfilled by the District entering a
contract and reimbursing the parent for individually trans-
porting the pupil.        Such is the statutory basis of the trans-
portation contract at issue here.              The method by which the
parent is reimbursed by contract may include (1) palring the
parent or guardian for individually transporting the pupil;
(2) paying      room and board         reimbursements;     (3)    providing
supervised correspondence study; or (4) providing supervised
home   study.       Section 20-20-121 (3) (b), MCA.          The statute
further recognizes a practice whereby a district may furnish
transportation to an eligible transportee who has been grant-
ed permission to attend school outside of the district.
Section 20-10-121 (I), MCA.
       The      statute    that   authorizes         the   execution       of
transportation       contracts    arguably       infers     that      school
districts must give prior permission to those pupils who want
to attend school outside of their home district.                 The statute
reads :      "The     trustees    of     any   district     may     furnish
tra-nsportation to            an   eligible transportee who           attends a
school of the district or has been granted permission to
attend       a     school     outside    of     the   district."        Section
20-10-121(1), MCA.            Neither party has raised the question of
the applicability of this aspect of the statute to the facts
of this case.           Therefore, the issue will not be reached by
this Court.
          It is clear that the statutory scheme provides a flexi-
ble procedure whereby a parent of an eligible transportee can
be reimbursed for the incidental costs of transporting and
educating children.            The statutory scheme has wide applica-
tion to the large number of families who live in remote areas
of our state.          The threshold qualification is simply that the
child be an eligible transportee.
          Section 20-10-101(2), MCA, defines eligible transportee
as    a    pupil      who    resides with      a   parent     or   guardian who
"maintains a legal residence within the boundaries of the
d-istrict furnishing the transportation regardless of where
the       eligible     transportee      actually      lives    when    attending
school.."         Initially, then, it can be stated that if Ann
Simonsen maintained a residence during the 1976-1977 school
year within the Lima School District, then her children were
eligible transportees and the transportation contract was
properly granted and paid.

          In determining residence within Montana certain statu-
tory rules are set forth in section 1-1-215, MCA.                     The appli-

cability         of   this    particular      statute to      the question of
residency for the school transportation contracts is but-
tressed      by       the    mandate    of    another   statute.        Section
20-10-105, MCA, states that when the residence of an eligible
transportee is a matter of controversy in an issue before the
Board of Trustees, the County Transportation Committee, or
the Superintendent of Public Instruction, residence shall be
determined on the basis of section 1-1-215, MCA.
      Section 1-1-21.5, MCA, provides that certain rules are
to observed in determining the place of residence.     In rele-
vant part the rules state that there can be only one resi-
dence and    " [ilt is the place where one remains when not
called elsewhere for labor or other special or temporary
purpose and to which he returns in seasons of repose."
      Subsequent case law has held that these rules are only
quidel-ines for interpretation and not a definition.     Every
case must stand upon its own facts and each decision will
". . . be   the result of a more or less arbitrary application
of the rules of law to the facts presented."       McCarthy v.
Montana Power Company (1963), 143 Mont. 134, 140, 387 P.2d
438, 442, quoting from Carwil-e v. Jones (1909), 38 Mont. 590,
602, 101 P. 153, 158.   See also Kunesh v. City of Great Falls
(1957), 132 Mont. 285, 317 P.2d 297.
      Our decision today can rise above a mere "arbitrary
application" of the law to the facts.        The circumstances
presented by the Simonsens' use of their Centennial ranch
seem well within the scope of the statutory guidelines.     We
are presented with a situation where the Simonsens would
remain on their ranch but for the pressing needs of earning
an income and educating their children.    Winter road closures
and distance from a job market effectively bar the family
from living year round on the ranch.      This is precisely the
type of situation the legisl-ature must have had in mind when
it enacted the quidel-ines of residency whereby a residence
may be a place that one leaves for labor or other special or
temporary purpose.     Educating one's children is certainly a
special and temporary purpose within         the meaning    of the
statute.
        The Superintendent of Public Instruction in his deci-
sion and order dated September 4, 1981, found the Simonsens
did not return to their ranch in seasons of repose.        He found
the Simonsens lived in and returned to Sheridan, Montana.
The Superintendent did not specify what summers he was refer-
ring to in his decision.       Nothing in the record before us
would indicate that the Simonsens did not spend at least part
of the summer of 1976 on their property.           The season of
repose for a rural family faced with the demands of earning
an income and educating their children may be short indeed.
        The School District argued that the Simonsens were not
registered    voters   of   Beaverhead   County.   However,    the
Simonsens were not registered voters of Madison County ei-
ther.    The mere fact that a husband and wife choose not to
vote does not preclude them from obtaining legal residency
and receiving its ancillary benefits.
        Similarly, the School District emphasized the Simonsens
paid no utility bills within Beaverhead County.        Testimony
was introduced about the "uninhabitable" nature of the ranch
and its dwelling structures.
        Such considerations that focus on the particular life-
style a coupl-e has adopted have little relevancy to the
question of their legal residence.         If this were not the
case, a family could be denied certain privileges of residen-
cy, such as a school transportation contract, simply because
they decided to live without or could not afford certain
comforts.
         The Simonsens' unqualified intent is to maintain their
Centennial Valley ranch as their residence.          No other home
has been     claimed as their residence.      We recognize that
intentions and declarations alone do not control the determi-
nation of residency.    Veseth v. Veseth (1966), 1.47 Mont. 169,
410 P. 2d 930.    However, here there is more than mere intent.
The Simonsen ranch has been owned and operated continuously
by Ann Simonsen, and her family before her, for over thirty

years.     The Simonsens pay real estate taxes to Beaverhead
County and a      self-contained camp trailer licensed in the
county has been maintained on the property.
        A determination of residency in a situation like the
present one cannot be made by mere application of mechanical
rules.     In accordance with this Court's decisions in McCarthy
and Kunesh, each case must stand on its own facts.        Findings
of fact were entered by Judge Blair that support his conclu-
sion that the Simonsens are residents of Beaverhead County.
In reviewing findings of fact in a civil action tried without
a jury, this Court may not substitute its judgment in place
of the trier of facts.    Our function is confined to determin-
ing whether there is substantial credible evidence to support
the court's findings.     We view the evidence "in a light most
favorable to the prevailing party, recognizing that substan-
tial evidence may be weak or conflicting with other evidence
yet still support the findings."        Lacey v. Herndon (Mont.
1983), 668 P.2d 251, 255, 40 St.Rep. 1375, 1380.
         In light of the purpose for which the Simonsens left
their    Centennial property,   their   continuous   intention   to
maintain the ranch as their residence and the payment of
Reaverhead County property taxes, we hold there was substan-
tial evidence from which the District Court could. conclude
the Simonsens were residents of Reaverhead County.
        Finding the Simonsens residents of Beaverhead County,
it follows that the children were eligible transportees and
the transportation contract for 1976-1977 was properly grant-
ed and paid.




        The District Court awa-rded the Simonsens five thousand
dollars for emotional damages on their counterclaim.                The
counterclaim alleged wrongful denial of the 1977-1979 school
transportation contracts, failure to provide a school or
passable roads, abuse of process, and failure to allow them
to exhaust their administrative remedies.             These allegations
were    denied   by    the   School District in       their   responsive
pleading.      At trial however, the plaintiff School District
chose    not     to     present   a   defense    to    the    Simonsens'
counterclaim.         The amount of damages is not an issue, only
the School District's liability therefor.
        Where a defendant counterclaims for damages due to the
wrongful acts of the plaintiff, the defendant has the burden
of proving the counterclaim.          J.I. Case Threshing Mach. Co.
v.   Hamilton    (1918), 55 Mont.     276, 176 P.       152; Murphy v.
Cooper (1910), 41 Mont. 72, 108 P. 576.           Once the defendant
bearing the burden of proof has made a prima facie showing,
the burden of going forward with the evidence shifts to the
opposing party.          See Duke City Lumber Co. v. New Mexico
Environmental Imp. Bd.         (1980), 95 N.M.    401, 622 P.2d 709.
        We have reviewed the pleadings, answers to requests for
admissions, interrogatories and trial transcript and find the
Simonsens satisfied their burden of proof.            Sufficient evi-
dence was before the trial judge for him to conclude that the
School District wrongfully denied the Simonsens' transporta-
tion contract application for 1977-1978.               We uphold the
damage award on this basis.          We find the School District and
county have no sta.tutory duty to provide either a school or
passable roads for one family residing in an isolated valley.
Nor do we find that the evidence submitted supports a cause
of action for abuse of process.           See Brault v. Smith (Mont.

1984) I         P.2d       ,   41 St.Rep. 527.
          The School District argues before this Court that the
counterclaim is barred by the doctrine of sovereign immunity.
This issue was not raised in the pleadings or otherwise at
trial.       It need not be considered by the Supreme Court.
Huggans v. Weer (Mont. 1980), 615 P.2d 922, 925, 37 St.Rep.
1512, 1515.      The School District itself initiated this law-
suit.      It would be especially inequitable to allow the state
to bring an action for payment by mistake and vest them with
immunity from suit in related matters.           The better rule is to
recognize that whenever the state brings an equitable action
it waives any applicable sovereignty and opens the door to a
defense or counterclaim germane to the matter in controversy.
See    People   v.     Barenfeld   (1962), 203 Cal.App.2d      166, 21
Cal.Rptr. 501.
          Unlawful acts that result in detriment to a party
provide a right to recovery of money damages in our state.
S27-1-202, MCA.           Denial   of   transportation money    to   an
eligible transportee of a school district is such an unlawful
act.      There is no doubt that the Simonsens suffered detriment
as a result of this denial.             Not only did they suffer the
pecuniary loss of the withheld transportation monies, but
they   expended   considerable time   and   emotional energy    in
defending against the School District's suit to recover the
monies already paid.
       We note that this lawsuit was filed despite the county
attorney's knowledge of the pending administrative appeal
concerning the issue of the Simonsens' residency.          In the
words of amicus State Superintendent of Public Instruction,
the School. District "jumped the gun" and filed a compl-aint
before   the   administrative   appeal   process   was   complete.
Neither the ends of justice nor the peace of mind of the
Simonsens were served by such action.
       For the wrongful denial of the transportation contract
appl-icatj-onand the cavalier treatment of the Simonsens by
the School District, the trial court properly found damages
in the amount of $5,000 plus costs.
       The judgment of the district court is affirmed.




We concur:
