No. 12225
I N T E SUPREME C U T O THE STATE O M N A A
H OR F F OTN
1973
A T U J. MOVIUS,
RH R
P l a i n t i f f and Respondent,
-vs -
ALICE J. MOVIUS,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court 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 ,
Honorable A l f r e d B. Coate, Judge p r e s i d i n g .
Counsel of Record :
For Appellant :
S a n d a l l , Moses and Cavan, B i l l i n g s , Montana
John J . Cavan, Jr. argued, B i l l i n g s , Montana
For Respondent :
Michael J . Whalen argued, B i l l i n g s , Montana
-- -
Submitted : November 29, 1973
Decided : JRfi 10 1974
Filed : a l 0 1974
ff
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
A former wife filed a contempt action against her divorced
husband alleging failure on his part to make monthly alimony
payments and provide security therefor pursuant to a written
agreement between them which had been approved by the court
and incorporated into the divorce decree. The divorced husband
applied for a reduction of such monthly alimony payments based
upon a change in circumstances since entry of the original decree.
The district court of Yellowstone County, the Hon. Alfred B.
Coate, district judge presiding without a jury, entered an order
adjudicating the former husband not in contempt and reducing
the monthly alimony payments from $500 to $100 effective from
the date of filing of the petition for modification. Following
denial of her motion for a new trial, motion to amend the judg-
ment and exceptions to the findings of fact and conclusions of
law, the former wife appeals.
Appellant is Alice J. Movius, the former wife. Respondent
is Arthur J. Movius, the divorced husband. They will hereafter
be referred to as Alice and Arthur respectively.
Alice and Arthur were married in 1956 and no children were
born as issue of the marriage. For many years prior to this
divorce, Arthur was a physician and partner in the ~illingsClinic
in Billings, Montana and earned a substantial income from his
profession. Both real estate and personal property were acquired
during the course of this marriage.
Various difficulties arose between them culminating in
Arthur's filing of a divorce complaint against Alice on October
14, 1966, in the district court of Yellowstone County. Alice
answered his complaint and filed a cross-complaint seeking
(1) a divorce, (2) alimony, (3) attorney's fees, and (4) costs.
Before the matter was heard by the district court, Alice and
Arthur, through their respective attorneys, negotiated a written
agreement settling their property rights, support for Alice,
and all other claims of each against the other.
The salient features of this agreement were:
(1) An agreement to live separate and apart from each
other.
(2) An agreement by each to release the other from any
claims or obligations except as provided in the agreement and
making each party thereafter liable for his or her own personal
and separate obligations.
(3) A provision that the agreement not become effective
until a valid decree of divorce was entered in which the agree-
ment was approved and ratified by the court and incorporated in
the decree and "which decree shall contain no provision for the
Husband to pay any alimony, support or maintenance except as
herein provided in this agreement which shall be and constitute
an integrated part of the said decree".
(4) A provision for division of household finishings,
yard equipment, tools and appliances.
(5) An agreement by Arthur to pay Alice $500 per month
for her support and maintenance until Arthur reaches age 65,
then the sum shall be reduced to $300 per month until Arthur
reaches age 70 when it shall terminate absolutely. The monthly
payments would also terminate in the event of Alice's remarriage.
Upon request of Alice, Arthur agreed to apply for disability
insurance that would pay an amount equal to the payments for
Alice's support and maintenance, with the premiums to be paid by
Alice. Arthur agreed that upon termination of his association
with the Billings Clinic to place $18,000 in trust as security
for the monthly payments to Alice, ownership of said $18,000 trust
fund to remain in Arthur.
( 6 ) An agreement by Arthur to pay Alice $1,000
attorney's fees.
(7) An agreement by Alice to quit claim her joint
interest in the family house to Arthur, and Arthur's agreement
to pay her $15,000 therefor.
(8) An agreement by Arthur to assign an insurance policy
to Alice and make her beneficial owner, with Alice paying the
annual premiums.
( 9 ) An agreement by Arthur to contribute $2,500 toward
the purchase of a car for Alice.
(10) A provision that the agreement "shall be and operate
as a complete property settlement between the parties and there
is no other agreement between the parties except as herein spec-
ifically set forth. "
This agreement was dated June 2, 1967. A decree was
entered by the district court on June 5 providing: (1) Alice
was granted a divorce from Arthur; (2) the property settlement
agreement was ratified, approved and adopted by the court, in-
corporated into the decree, and both parties were bound thereby.
Arthur remarried shortly thereafter. His association
with the Billings Clinic terminated June 30, 1967.
On September 28, 1970, Alice instituted contempt proceed-
ings against Arthur alleging his failure to make the payments
required by the divorce decree and his failure to establish the
$18,000 trust fund as security therefor.
On February 24, 1971, Arthur applied for reduction of
monthly support and maintenance payments from $500 to not more
than $150. He alleged changed circumstances since entry of the
decree involving a substantial reduction in income, deterioration
of health and the ability of Alice to provide for her own support
and maintenance.
Both matters came on for a consolidated hearing before
Judge Coate on March 26, 1971. Findings of fact and conclusions
of law were entered on November 3 and an order or judgment was
entered on November 9. The substance of the order or judgment
was that Arthur was not guilty of contempt, that Arthur was
obligated to pay Alice all accrued support money owed under the
original decree to the date of Arthur's application for modifica-
tion (February 24, 1971) and thereafter support money payments
were reduced to $100 per month,
Following denial of Alice's motion for new trial, motion
to amend the judgment, and exceptions to the court's findings
of fact and conclusions of law, Alice appealed from the judgment.
The issues on appeal are twofold:
(1) Is the original decree of the court ratifying,
adopting and incorporating the property settlement agreement
of the parties subject to subsequent modification by the court?
(2) If so, did the district court commit error by
modifying the accrued alimony payments retroactively?
Directing our attention to the first issue, the under-
lying question is whether the alimony provision of the property
settlement is integral and not severable from the rest of the
agreement and as such not subject to subsequent modification by
the court. This question was recently before this Court in
Washington v. Washington, -Mont . , 512 P.2d 1300, 30 St.
Rep. 674. There we held that the alimony provisions of that
particular agreement were not in fact alimony payments at all,
but instead were an integrated part of a property settlement
which could not be severed therefrom without destroying the
contract, and accordingly were not subject to subsequent modif-
ication by the court.
We reaffirm the principles announced therein, the authorities
cited in support, and the rationale applied to resolution of the
question. Here, however, although the agreement bears some sim-
ilarities to the agreement in Washington, its differences com-
mand an opposite result. In Washington the wife didn't seek
alimony or support in the divorce action but both parties simply
sought an equitable settlement of property rights; the agreement
incorporated in the decree in Washington provided that the pay-
ments labeled as alimony continued if the wife remarried and
become a charge against the husband's estate if he died prior to
payment in full; the agreement provided that the wife would assume
a pre-existing liability of $10,000 against some of the property.
Here, unlike Washington, Alice sought an alimony award
for her support and maintenance in her crosscLaim for divorce,
and the divorce decree made such an award pursuant to the agree-
ment of the parties. The alimony payments to Alice terminated
absolutely in the event of her remarriage. The agreement here
is silent on liability for future payments in the event of death
of either Alice or Arthur. The alimony provisions here are clearly
alimony and not payments in settlement of property rights. Here
Alice assumed no liability for any pre-existing indebtedness nor
is there any evidence indicating that she gave up anything in
the way of support and maintenance in consideration of receiving
a more favorable division of the property acquired during their
marriage.
In short, here there is no interrelationship between the
alimony provisions and the property division that would destroy
the rest of the contract if the amount of alimony payments were
modified by the court. Absent such mutual interdependency, the
alimony provisions of the agreement incorporated in the decree
are not an integral part of the property settlement but are in
all respects separable therefrom and subject to subsequent mod-
ification by the court in its discretion on a proper showing
of changed circumstances. This discretion of the district
c0ur.t was properly ezrcised here as the evidence indicates a
drastic change in financial circumstances of the husband and
deterioration of the husband's health.
The second issue is whether or not the reduction of
alimony payments by the court can be made effective as of the
date of Arthur's application for modification rather than the
date of the court's order reducing the payments. Here there was
approximately a nine-month interval between Arthur's application
for reduction and the court's order therefor. The amount involved
is about $3,600.
This precise issue has not heretofore been ruled upon by
this Court. The majority rule is that courts may cancel arrears
of alimony, separate maintenance, or support which accrued after
the filing of a motion for modification of the decree and prior
to the entry of the order based upon such a request for relief.
6 A.L.R.2d 1328 and cases cited therein; A.L.R.2d Later Case
service, p. 845 and the following recent cases: Fioravanti v.
Fioravanti, C.C.A., D.C., 231 F.2d 776; Goodman v. Goodman, 173
Neb. 330, 113 N.W.2d 202.
Montana cases considering the related problem of retro-
active modification of decrees for past due alimony predating
the application for modification are: Woehler v. Woehler, 107
Mont. 69, 81 P.2d 344 (permitting such retroactive modification
in a separate maintenance action under a statute providing for
enforcement by orders which may be varied, altered or revoked
by the court); Porter v. Porter, 155 Mont. 451, 473 P.2d 538
(suggesting t.hat such retroactive modification in a divorce
action is improper under statute permitting court to modify
alimony orders).
In our view the problem of retroactive modification
in its broad sense is not presented by this case. Section 21-
139, R.C.M. 1947 is sufficiently broad to permit the court to
make an order modifying alimony payments effective as of the
date of application therefor. The relief sought is based on
changed conditions that exist at the date of filing the petition
for modification, so no compelling reasons appear to us why a
court, in its discretion, cannot award applicant relief from
that date onward.
The judgment of the district court is affirmed.
Justice
We concur: