                               No.    93-323
            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1993


DONNA MARRY,
            Plaintiff and Appellant,
     -vs-
MISSOULA COUNTY SHERIFF'S
DEPARTMENT AND COUNTY OF MISSOULA,
            Defendant and Respondent.




APPEAL FROM:     District Court of the Fourth Judicial District,
                 In and for the County of Missoula,
                 The Honorable John S. Henson, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                 Robert K. Ogg; Grenfell       &   Ogg, Missoula, Montana

            For Respondent:
                 Michael W. Sehestedt, Deputy Missoula County
                 Attorney, Missoula, Montana


                              Submitted on Briefs:       September 30, 1993
                                            Decided:     December 28, 1993
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.


    Appellant Donna Marry (Marry) appeals the Fourth Judicial
District Court, Missoula County, order which amended its original
findings of fact and conclusions of law in response to Marry's
motion for new trial and amendment of judgment.       We reverse and
remand.
     The issue is whether the District Court abused its discretion
by amending a finding of fact solely to support a conclusion of
law, which barred Marry from recovering damages.
        This case involved a motor vehicle accident between Marry and
a Deputy Sheriff of the Missoula County Sheriff's Department. The
parties disputed liability; each party contended that the other was
negligent per se.
        The District Court heard the case without a jury and entered
its original findings of fact and conclusions of law on March 19,
1993.     Finding of Fact No. 7 read:
        The collision was caused equally by [Marry's] failure to
        yield the right of way and by [the] Deputy  ..   . [who1
        exceedled] the speed limit.
Conclusion of Law No. 6 read:
        The negligence of [Marry] and the negligence of [the
                .
        Deputy] . . contributed equally to the accident barring
        recovery by either party. 5 27-1-701 MCA [sic].
The court ordered that judgment be entered in favor of defendants
with each party to pay their own costs.
        On April 1, 1993, Marry moved the court to make additional
findings of fact concerning her damages. She also moved the court
for a new trial or in the alternative to amend Conclusion of Law
No. 6 to conform with 5 27-1-702, MCA.   Marry argued that Finding
of Fact No. 7 established that the parties were equally negligent
and, thus, the clear mandate of      27-1-702, MCA, required the
District Court to amend Conclusion of Law No. 6 to entitle Marry to
recover fifty percent of the damages she sustained in the accident.
     In response to Marry's motion for new trial and amendment of
judgment, the District Court, on May 6, 1993, entered an opinion
and order.   In that opinion and order, the court admitted that,
given the facts, Conclusion of Law No. 6 was not consistent with
Montana law on contributory negligence. See 5 27-1-702, MCA.    The
court stated:
     It was the intent of the [clourt that [Marry] take
     nothing in this action. The [c]ourtts finding of "equal"
     negligence allows for a recovery on the part of [Marry].
     That was not the [c]ourtls intent.
The court then amended Finding of Fact No. 7:
     The collision was primarily caused by [Marry's] failure
     to yield the right of way, and secondarily by [the]
     Deputy  ...  [who] exceed[ed] the speed limit.
Further, Conclusion of Law No. 6 was amended to read:
     The negligence of [Marry] being greater than the
     negligence of the Defendant, [Marry] is not entitled to
     recovery. 5 27-1-701 MCA [sic].
The court also denied Marry's    motion for a new trial.       Marry
appeals the court's decision to amend Finding of Fact No. 7.
     Usually we will uphold a district court's findings of fact if
substantial credible evidence supports those findings.     Emcasco
Ins. Co. v. Waymire (1990), 242 Mont. 131, 135, 788 P.2d 1357,
1360; Robinson v. Schrade (1985), 215 Mont. 326, 328, 697 P.2d 923,
925. However, when, as here, a district court amends a finding of
fact to support a conclusion of law, we will review whether the
district court abused its discretion. See Steer, Inc. v. Deplt of
Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.
     Marry maintains that the District Court abused its discretion
by failing to follow the mandate of Rule 52(a) and (b), M.R.Civ.P.,
which require the court to find the facts first and then base its
conclusions of law on those facts and to only amend its findings
after reviewing the evidence in the record.   Marry argues, and we
agree, that the District Court amended Finding of Fact No. 7 solely
to support Conclusion of Law No. 6 which prohibited her from
recovering damages.
     Rule 52(a), M.R.Civ.P.,   requires the district court to "find
the facts specially and state separately its conclusions of law
thereon   . . . . II   Rule 52(b), M.R.Civ.P.,   states that "the
[district] court may amend its findings or make additional findings
and may amend its judgment accordingly." The court must, however,
review the evidence in the record before amending its findings.
See Ring v. Hoselton (1982), 197 Mont. 414, 422, 643 P.2d 1165,
1170. Read in conjunction, Rule 52(a) and (b), M.R.Civ.P., compel
the district court to find the facts first and review the record
prior to amending its findings of fact.    Rule 52 (a), M.R.Civ.P.,
also requires the court to base its conclusions of law on the facts
that it finds.
     Initially, here, the District Court found that Marry and the
Deputy were equally responsible for the collision. The court then
erroneously concluded that neither party could recover damages
under 5 27-1-702, MCA.       Following Marry's    motion for a new trial
and amendment of judgment, the court admitted that Conclusion No.
6 was not consistent with Montana law and that Finding No. 7 did

not support the result it desired to achieve.           Thus, the court
amended Finding No. 7 and Conclusion No. 6 in its opinion and
order. The court clearly noted that its intent in amending Finding
No. 7 was to prevent Marry from recovering damages.
     The District Court did not, as required by Rule 52(b),
M.R.Civ.P.,    review the evidence in the record when it amended
Finding of Fact No. 7. In fact, the court, in its order, failed to
state that it reviewed the evidence and determined that Finding of
Fact No. 7 was incorrect.        Instead, the District Court amended
Finding No. 7 because it desiredto preclude Marry from recovering
damages.
     Moreover, we     note    that   both   the   original   and   amended
Conclusion No. 6 dictated that Marry was barred from recovering
damages.      The District Court did not find the facts first, as
required by Rule 52(a) M.R.Civ.P.       Instead, the court fashioned a
conclusion of law which barred Marry from recovering damages and
then found facts to support that conclusion.           We hold that the
District Court abused its discretion when it arbitrarily, without
reviewing the record, formed the facts to fit its already-fashioned
conclusion of law.
     We reverse and remand this case to the District Court with
instructions to reinstate original Finding of Fact No. 7 and to
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amend Conclusion of Law No. 6 so that it is consistent with Montana

law.        Further, the District Court is directed to make findings as

to Marry's       damages and enter judgment in favor of Marry to recover

half of her damages.

            Reversed and remanded with instructions.
