Bertagnolli v. Bertagnolli

No. 14674
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979

PATRICIA H. BERTAGNOLLI,
Plaintiff and Appellant,
VS.

EDWARD E. BERTAGNOLLI,
Defendant and Respondent.

Appeal from: District Court of the Eighteenth Judicial District,
Honorable W. W. Lessley, Judge presiding.
Counsel of Record:
For Appellant:
Drysdale, McLean and Screnar, Bozeman, Montana
For Respondent:
Berg, Morgan, Coil & Stokes, Bozeman, Montana

Submitted on briefs: September 12, 1979
Decided : OEC 1 9 1979

Filed: 2 ?im
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.

Appellant, formerly Patricia H. Bertagnolli, began this
action in 1974 by filing a complaint for divorce in the
Eighteenth Judicial District before the Honorable W. W.
Lessley. The complaint requested the court to dissolve her
marriage to the respondent, Dr. Edward E. Bertagnolli, to
equitably divide the property of the parties, and to award
her support and maintenance payments and attorney fees.
At the time the complaint was filed, Dr. and Mrs.
Bertagnolli had been married for 27 years. During the
marriage, Dr. Bertagnolli practiced medicine in Three Forks,
Montana, and Mrs. Bertagnolli cared for the couple's home
and raised the seven children born to the marriage. The
couple accumulated real estate and personal property valued
at $220,000 at the time of their divorce. In the years
immediately prior to the divorce, Dr. Bertagnolli had a
yearly net income of approximately $35,000.
The record shows that at the time of the divorce pro-
ceedings, Mrs. Bertagnolli had decided to move from Three
Forks to Bozeman. The complaint filed by Mrs. ~ertganolli
states that she felt it would be in the best interests of
the couple's children to remain together in their home in
Three Forks where they attended school. To facilitate this,
Mrs. Bertagnolli's complaint alleges custody of the children
should be granted to Dr. Bertagnolli.
At the hearing on the divorce, the parties introduced
exhibits setting out their living expenses based on the
assumption that the trial court would award custody to Dr.
Bertagnolli. The exhibits show Mrs. Bertagnolli needed
approximately $550 per month to provide for herself. Dr.
B e r t a g n o l l i , on t h e o t h e r hand, r e q u i r e d a l m o s t f i v e t i m e s

t h a t amount t o m a i n t a i n a household f o r t h e c o u p l e ' s c h i l -

dren, Dr. B e r t a g n o l l i ' s E x h i b i t A l i s t s o v e r $2400 p e r

month i n e x p e n s e s n e c e s s a r y t o s u p p o r t t h e B e r t a g n o l l i

c h i l d r e n s t i l l d e p e n d e n t on t h e i r p a r e n t s . The l i s t i n -

c l u d e s e x p e n s e s f o r f o o d , c l o t h i n g , h o u s i n g and c o l l e g e f o r

a l a r g e family.

Subsequent t o h e a r i n g t h e c o m p l a i n t , t h e D i s t r i c t C o u r t

found a l l of t h e p r o p e r t y accumulated by t h e p a r t i e s d u r i n g

t h e i r marriage w a s i n t h e possession of D r . B e r t a g n o l l i

e x c e p t a 1970 R e n a u l t a u t o m o b i l e which w a s i n t h e p o s s e s s i o n

of M r s . Bertagnolli. The c o u r t a l s o found it would b e i n

t h e b e s t i n t e r e s t of t h e c h i l d r e n of t h e marriage t o be

placed i n t h e custody of D r . Bertagnolli. Based on t h e s e

f i n d i n g s , t h e c o u r t awarded c u s t o d y o f t h e c h i l d r e n t o D r .

B e r t a g n o l l i , o r d e r e d him t o pay M r s . Bertagnolli's tuition

and book e x p e n s e s i f s h e a t t e n d e d c o l l e g e , o r d e r e d t h e

d o c t o r t o pay M r s . B e r t a g n o l l i ' s a t t o r n e y f e e s and o r d e r e d

him t o pay h e r $650 p e r month f o r h e r s u p p o r t and main-

tenance. P u r s u a n t t o a t i m e l y motion by D r . Bertagnolli,

t h e c o u r t amended t h e judgment r e d u c i n g t h e monthly payment

t o $600. Faced w i t h t h e n e c e s s i t y of k e e p i n g t h e p r o p e r t y

of t h e m a r r i a g e t o g e t h e r f o r t h e s u p p o r t of t h e c o u p l e ' s

l a r g e f a m i l y , t h e c o u r t awarded D r . ~ e r t a g n o l l ia l l t h e

property i n h i s possession. Although t h e judgment g r a n t e d

a l m o s t none of t h e c o u p l e ' s p r o p e r t y t o M r s . Bertagnolli,
she d i d n o t appeal t h e D i s t r i c t Court's decision.

Mrs. B e r t a g n o l l i r e m a r r i e d i n 1978. A f t e r t h e remar-

riage, Dr. B e r t a g n o l l i r e f u s e d t o make any f u r t h e r monthly

payments. The a p p e l l a n t , now M r s . Nelson, p e t i t i o n e d t h e
D i s t r i c t C o u r t t o h o l d t h e d o c t o r i n contempt f o r f a i l i n g t o
make h i s monthly payments. A f t e r a h e a r i n g on t h e m a t t e r ,
Judge L e s s l e y t e r m i n a t e d D r . B e r t a g n o l l i ' s o b l i g a t i o n t o

make f u r t h e r payments, c i t i n g s e c t i o n s 21-139 and/or 48-

330 ( 2 ) , R.C.M. 1947, now s e c t i o n 40-4-208 ( 2 ) , MCA. Those

s e c t i o n s r e q u i r e t h e c o u r t t o t e r m i n a t e maintenance payments

upon t h e r e m a r r i a g e o f t h e p a r t y r e c e i v i n g maintenance

absent c e r t a i n conditions n o t present i n t h i s case. Mrs.

Nelson a p p e a l s t h i s d e c i s i o n o f t h e lower c o u r t .

The c o n t r o v e r s y i n t h i s c a s e c e n t e r s around t h e l a n -

guage i n t h e amended d e c r e e o f d i v o r c e and judgment e n t e r e d

i n 1975 g r a n t i n g t h e former M r s . B e r t a g n o l l i s u p p o r t and

maintenance payments i n l i e u of a p r o p e r t y d i v i s i o n . If we

d e t e r m i n e t h e monthly payments o r d e r e d by t h i s p a r t of t h e

d i v o r c e d e c r e e c o n s t i t u t e maintenance o r alimony, t h e D i s -

t r i c t C o u r t p r o p e r l y h e l d t h e payments s h o u l d t e r m i n a t e on
Mrs. B e r t a g n o l l i ' s remarriage. S e c t i o n 40-4-208(2), MCA.

I f , however, t h e payments were i n t e n d e d t o be a p a r t o f t h e

p r o p e r t y d i v i s i o n between t h e p a r t i e s , t h e p r o p e r t y s e t t l e -

ment produced f o r M r s . Bertagnolli a vested r i g h t i n the

payments. I n r e M a r r i a g e of R e i l l y ( 1 9 7 8 ) , Mont. I

577 P.2d 840, 844, 35 St.Rep. 451, 457. Under t h i s i n t e r -

p r e t a t i o n o f t h e o r i g i n a l d e c r e e , h e r r e m a r r i a g e would n o t

a f f e c t t h i s r i g h t , and t h e D i s t r i c t C o u r t o r d e r t e r m i n a t i n g

t h e payments s h o u l d be r e v e r s e d .

T h i s C o u r t h a s c o n s i d e r e d t h e q u e s t i o n of whether

l a n g u a g e i n d i v o r c e d e c r e e s c o n s t i t u t e s a n award of main-
t e n a n c e o r a d i v i s i o n o f p r o p e r t y on s e v e r a l p r i o r o c c a -

sions: Washington v . Washington ( 1 9 7 3 ) , 162 Mont. 349, 354-

357, 512 P . 2d 1300; Movius v . Movius ( 1 9 7 4 ) , 163 Mont. 463,

467-469, 517 P.2d 884; T a y l o r v. T a y l o r ( 1 9 7 5 ) , 167 ~ o n t .
1 6 4 , 168-170, 537 P.2d 483; Englund v . Englund ( 1 9 7 6 ) , 169

Mont. 418, 421, 547 P.2d 841.

Washington, Movius and T a y l o r a l l i n v o l v e d s i t u a t i o n s
i n which t h e p a r t i e s t o t h e d i v o r c e had e n t e r e d i n t o s e t t l e -

ment agreements which w e r e i n c o r p o r a t e d by r e f e r e n c e i n t o

court divorce decrees. I n t h o s e c a s e s , w e looked t o t h e

a g r e e m e n t s t o d e t e r m i n e i f t h e alimony p r o v i s i o n s w e r e

i n t e g r a l p a r t s of t h e e n t i r e agreement between t h e p a r t i e s .

I f t h e maintenance p r o v i s i o n s were i n s e p a r a b l e from t h e

p r o p e r t y s e t t l e m e n t p o r t i o n s o f t h e e n t i r e agreement, w e

h e l d t h e alimony payments c o n s t i t u t e d a p a r t of t h e p r o p e r t y

settlement contract. A s such, t h e c o u r t s d i d n o t possess

a u t h o r i t y t o modify t h e agreement between t h e p a r t i e s .

T a y l o r , 167 Mont. a t 168.

W e c a n n o t a p p l y t h e a n a l y s i s employed i n t h e s e t h r e e

cases t o t h e i n s t a n t c a s e . The p a r t i e s h e r e d i d n o t e n t e r

i n t o a s e t t l e m e n t agreement. W e cannot, therefore, d e t e r -

mine i f t h e alimony payments awarded t o M r s . B e r t a g n o l l i

w e r e a n i n t e g r a l p a r t o f t h e agreement between t h e p a r t i e s .
I n a d d i t i o n , w e cannot say t h e D i s t r i c t Court erroneously

e x e r c i s e d i t s power by modifying a n agreement between t h e

p a r t i e s h e r e when no agreement e x i s t e d .

W e must, t h e r e f o r e , r e l y on t h e s t a n d a r d s e t o u t i n

Englund v. Englund, s u p r a , and c a s e s from o t h e r j u r i s d i c -

t i o n s d e a l i n g w i t h s i t u a t i o n s where t h e m a i n t e n a n c e award i s
d e c r e t a l r a t h e r t h a n based on a s e t t l e d agreement. When t h e
q u e s t i o n a r i s e s under t h e s e c i r c u m s t a n c e s , w e examine t h e

i n t e n t of t h e D i s t r i c t C o u r t i n i s s u i n g t h e d e c r e e t o d e t e r -
mine i f t h e payments c o n s t i t u t e maintenance o r p a r t o f a

property settlement. Englund, 169 Mont. a t 421; V i g l i o n e v.

V i g l i o n e ( 1 9 7 6 ) , 1 7 1 Conn. 213, 368 A.2d 202, 204-205. If
t h e lower c o u r t m i s t a k e n l y l a b e l s maintenance what i t o b v i -

o u s l y i n t e n d s t o be a p a r t o f t h e p r o p e r t y s e t t l e m e n t , w e

w i l l r e c o g n i z e t h e award a s p a r t o f t h e p r o p e r t y s e t t l e m e n t
on a p p e a l . Englund, 169 Mont. a t 4 2 1 .

Applying t h i s t e s t h e r e , w e f i n d t h e f a c t s show t h e

t r i a l c o u r t i n t e n d e d t h e payments t o be m a i n t e n a n c e , n o t p a r t
of a p r o p e r t y s e t t l e m e n t . The l a n g u a g e used by t h e ~ i s t r i c t

Court i n t h e o r i g i n a l decree s t r o n g l y i n d i c a t e s t h e c o u r t

i n t e n d e d t h e payments t o be maintenance. The d e c r e e , a s

amended, r e a d s :

" I n l i e u of a d i v i s i o n of t h e property of
P l a i n t i f f and Defendant, Defendant s h a l l
pay P l a i n t i f f t h e sum of SIX H N R D DOLLARS
U DE
($600.00) p e r month a s and f o r h e r s u p p o r t
and m a i n t e n a n c e ... "
The p l a i n meaning o f t h a t language i n d i c a t e s t h e c o u r t

i n t e n d e d t h e award t o c o n s t i t u t e m a i n t e n a n c e i n s t e a d o f a

property settlement.

I n making t h e award, t h e lower c o u r t c o n s i d e r e d t h e

a b i l i t y o f D r . B e r t a g n o l l i t o make payments and M r s . Bertag-

n o l l i ' s n e c e s s a r y monthly e x p e n s e s . I t i s c l e a r from t h e

r e d u c t i o n of t h e amount of t h e payments from $650 t o $600

b e c a u s e t h e second f i g u r e w a s c l o s e r t o M r s . Bertagnolli's

l i v i n g e x p e n s e s t h a t t h e c o u r t d i d n o t t i e t h e amount o f t h e

payments t o t h e v a l u e o f t h e p r o p e r t y accumulated by t h e

p a r t i e s during t h e marriage. This f a c t a l s o leads t o t h e

c o n c l u s i o n t h a t t h e D i s t r i c t C o u r t i n t e n d e d payments t o be

maintenance r a t h e r t h a n a p r o p e r t y d i v i s i o n .
F i n a l l y , h e r e , a s i n V i g l i o n e where t h e C o n n e c t i c u t

Supreme C o u r t had a t r a n s c r i p t of remarks made by t h e

r e f e r e e who o r i g i n a l l y d e c i d e d t h e c a s e when c a l l e d upon t o

i n t e r p r e t t h e p r o v i s i o n s , we have t h e b e n e f i t of t h e i n t e r -

p r e t a t i o n o f t h e q u e s t i o n e d c l a u s e by t h e judge t h a t i s s u e d
t h e i n i t i a l decree. W e d o n o t f a c e t h e Englund s i t u a t i o n o f

r e v i e w i n g t h e i n t e r p r e t a t i o n of t h e l a n g u a g e by a second

D i s t r i c t C o u r t judge. The i n s t a n t f a c t s i t u a t i o n d o e s n o t

r e q u i r e u s t o r e a d t h e mind of t h e judge who e n t e r e d t h e
o r i g i n a l d e c r e e t o d e t e r m i n e i t s meaning. The judge t h a t

e n t e r e d t h e i n i t i a l d e c r e e t e l l s u s what h e i n t e n d e d by t h e

language i n t h e decree i n t h e f i n d i n g s , conclusions, o r d e r

and judgment he i s s u e d i n 1978. The judge concluded t h e
l a n g u a g e i n t h e f i r s t d e c r e e awarded M r s . B e r t a g n o l l i main-

t e n a n c e , n o t p r o p e r t y s e t t l e m e n t payments.
For t h e r e a s o n s s e t o u t above, w e a f f i r m t h e judgment

of t h e D i s t r i c t Court.

Q 4 - c I w L d

W concur:
e

X A ~&&&a?Q #
Chief J u s t i c e
/; P
Mr. Justice Daniel J. Shea dissenting:

An analysis of what the majority has done in this case
must start with the end result. This Court has determined
that a woman who gave 27 years to her husband as a wife and
mother of their 7 children at the dissolution of this marriage
which resulted in the joint accumulation of property worth
$220,000 is entitled to absolutely nothing. This cannot be
justice.
The central issue, according to the majority, requires
only an interpretation of the following conclusion of law contained
in the divorce decree entered in July 1975:

"In lieu of a division - - property of
---- of the
Plaintiff and Defendant, Defendant shallpay
Plaintiff the sum of SIX HUNDRED DOLLARS ($600.00)
per month as and for her support and maintenance
. . ."(Emphasis added.)
Compelled of course, only by logic and justice, the trial
court and this Court concluded that the payments were to continue
only until such time as the wife should remarry. This con-
clusion is permitted only if the words "support and maintenance"
are interpreted as traditional maintenance. If so, then upon
the wife's remarriage, the result naturally flows that under
either section 48-330(2), R.C.M. 1947 (now section 40-4-208(2),
MCA), or its predecessor in effect at the time of the entry of
the decree, section 21-139, R.C.M. 1947 (repealed in 1975), that

the duty of the husband to pay such "support and maintenance"
terminated upon the wife's remarriage in March 1978. Neither
logic nor justice requires this result.
Both the trial court and this Court ignore the implication
which naturally follows from a conclusion of law awarding "support
and maintenance" to the wife "in - -of a division of the
- lieu

property" of the husband and wife. By this language the trial
court plainly recognized that the wife had a property interest
-8-
in the assets of the marriage, but in considering the total

circumstances, chose to order the property interest paid in
some other form.
The meaning of the phrase "in lieu of" is well defined.
Black's Law Dictionary (4th Ed., at 896) defines it as meaning
"instead of, as a substitute for", or "in place of." The trial
court chose the words "instead of", and so did the majority here:
"The plain meaning of that language indicates
the court intended the award to constitute
-
maintenance instead of a property settlement."
(Emphasis added.)
Both the trial court, and this Court, it seems, without
a discussion, proceeded on the assumption that the phrase
"support and maintenance" means solely a conditional form of

payment, subject to termination by coming within the termination
1947
of support provisions contained in section 21-139, R.'G.P~Jand.its
successor, section 40-4-208(2), MCA. I do not construe this
phrase so narrowly, particularly in light of the devastating

consequences it has in this case.
By emphasizing that it was awarding support and maintenance
in lieu of a property division, the trial court, in effect,
stated: The wife has a right to an equitable division of the
$220,000 assets acquired by the joint efforts of the parties during
the marriage. However, rather than to divide the property, I
am going to keep it intact by substituting in its stead, the right
of the wife to support and maintenance in exchange for her giving
up her claim to an equitable division of the real and personal
property.
Unfortunately, the trial court chose the words "support and
maintenance" rather than more accurately characterizing the
true nature of her claim. Three years later these poorly chosen
words became a trap for the unwary wife.
- 9-
 Here the trial court clearly recognized the wife's property
interest in the $220,000 marital estate. Despite this interest,
did the trial court mean that it was awarding her $600 per
month only until she remarried or became fully self-supporting?
If this is the case, it awarded the wife virtually nothing. For
her to realize anything out of the marital accumulations she had
to refrain both from remarriage and from becoming fully self-
supporting. In exchange for this conditional interest, did the
wife give up, by virtue of the trial court's decree, any interest
she had in the assets jointly acquired during the marriage, with
a total value of $220,000? It strains credulity to consider this
as a fair exchange. This result, furthermore, is not compelled
by the law or the facts.
When the original decree was entered, it is clear that the
"support and maintenance" was not awarded to her simply because
she was unable to support herself and her husband had the
financial ability to do so. Rather, it was awarded to her to
compensate for her interest in the property acquired during the
marriage. Would there be any other reason for the trial court
to condition this "support or maintenance" as being - -
in lieu
-
of a division of property.. . ." ? The findings and conclusions
originally entered by the trial court fully support the con-
clusion that the wife was being compensated for a property interest.
That property interest, however ill-defined, vested at the time
of the entry of the findings and conclusions and the failure of
the husband to appeal from the trial court's original judgment.
A detailed summary of the trial court proceedings in this

case is necessary to understand the stature of the case at the
time it was submitted to the trial court for decision. It is
a gross over-simplification, to conclude, as the majority has,
that the only issue to be decided is to determine the meaning of
the questioned clause in the divorce decree, but to ignore the

status of the case at the time it was submitted to the trial court
for a determination of the rights of the parties.
-10-
 In September 1974, the wife filed a complaint for the
dissolution of her marriage. She specifically alleged that
the parties had acquired real and personal property through
their joint efforts and further requested the trial court to

"determine those rights [and] set over to each of the parties
their respective rights in said property." She also asked for
temporary support or maintenance pending the final decree.
Concerning her request for alimony or maintenance, the
wife alleged that she was without any means of support and that
the husband "should be required to pay plaintiff monthly alimony

- -lump sum - lieu thereof, as in the Court's discretion it
or a - - - in
may deem equitable." (Emphasis added.)
In her prayer for relief she specifically requested the
trial court to "make an equitable division of the property of
the parties" and to order "such sums as it deems meet and
equitable for Plaintiff's support and maintenance,. . ."
The issues as to property and maintenance were joined when
the husband filed his answer. He denied the wife's allegation
that the property was acquired by their joint efforts and he
denied her allegation that she was in need of maintenance.
Concerning her allegation as to the accumulation of marital
property, the husband specifically alleged:
". . . this answering defendant admits that during
their married life defendant has accumulated certain
real and personal properties; denies each and every
allegation and every part of every allegation of
said paragraph not hereinbefore otherwise qualified
or admitted." (Emphasis added.)
It is clear, therefore, that the husband claimed all the
property for himself, that is, that he alone had accumulated
the property.
In his prayer for relief, he requested that the wife take

nothing by her complaint and that he be granted all the relief
he requested. This of course would require a determination
that he alone owned all the property acquired during the
marriage and that the wife should be paid nothing for main-
tenance.
Before the actual dissolution of marriage, the wife
obtained a temporary maintenance order from the trial court
based upon her allegations, and the evidence submitted in
support of her need. Before trial on the merits because she
had no access to the records involved, she submitted detailed
interrogatories to the husband concerning a listing and valuation
of the property acquired during the marriage. It was established
that the value of the real property and personal property
acquired during the marriage was in the vicinity of $220,000.
After a hearing on the merits the trial court entered its
findings of fact and conclusions of law. The record of the
trial is not available to this Court for it appears that either
the court reporter or someone in the Clerk of Court's office
lost the trial notes, leaving a transcription impossible.
The divorce was granted on the basis of irreconcilable
differences; both wife and husband were found to be fit and
proper to have custody of the children; custody was awarded to
the husband based upon the request of the wife and request of
the husband. At the time of the divorce the wife was age 49
and the husband age 50. The husband had a taxable income of
$50,000 per year and net income of $36,000 per year. As to the

property acquired during the marriage, the trial court entered
the following findings:
"The Plaintiff - Defendant in their married lives
- and
have accumulated certain - - personal property,
realand
consisting of real estate and personal property and
investments and securities having a total value of
TWO HUNDRED TWENTY THOUSAND DOLLARS ($220,000.00),
all of which are more specifically described in Exhibit
'A1 attached hereto and by this reference made a part
thereof;
-12-
 "All of the property of the parties accumulated
during their marriage as aforesaid, is in the
possession and control of the Defendant, with the
exception of a 1970 Renault, which is in the
possession of the Plaintiff;"
The trial court entered five conclusions of law, but only
one of them related to the property acquired by the husband
and wife during the marriage, and it is the provision disputed
in this appeal:
"In lieu of a division - - property of
of the
lai in tiff and Defendant, Defendant shallpay
Plaintiff the sum of SIX HUNDRED AND FIFTY
DOLLARS ($650.00) per month as and for her support
and maintenance commencing July 1, 1975, which
sums shall be paid on the 1st of each month by
the Defendant through the Clerk of the above-
entitled Court;" (Emphasis added.)
After the entry of judgment, the husband immediately
recognized that the trial court had found that the property had
been accumulated by the efforts of he and his wife, and he

therefore launched an attack on this finding by moving the trial
court to amend its findings and conclusions. With respect to
the finding on the joint accumulation of the real and personal
property the husband requested the trial court to substitute

the following finding of fact.
". . . that the property and assets accumulated
during the marriage is not the result of joint
efforts of plaintiff and defendant, but rather,
is almost solely as a result of defendant's
investment program and labor as a general
practitioner."
By making this motion, it cannot be denied, that the husband
knew full well that the wife was recognized in the decree as
having an interest in the $220,000 assets accumulated during the

marriage.
In addition to asking the trial court to change its finding
in relation to the property accumulations by the joint efforts of
the husband and wife, and to substitute a finding that only the
husband had contributed to and acquired this property, the husband
asked the trial court to reduce the monthly payment from $650
per month to $600 per month. It is apparent that he had an
ulterior motive in making this request.
The husband gambled that should the court not change
its finding relating to the joint acquisition of marital assets,
an order reducing the amount paid would serve as a launching
pad for future argument that the monthly payments were nothing
more than traditional maintenance, terminable upon the wife either
becoming fully self-supporting or upon her remarriage. He proved
to be correct.
We thus have the situation in which the trial court refused

to change the finding of fact that the wife and husband had
jointly acquired real and personal property valued at $220,000.
On the other hand, the trial court reduced the monthly payment
from $650 per month to $600 per month. The wife did not appeal
from the trial court's reduction of the monthly payments, and
the husband did not appeal from the trial court's finding, and
its refusal to change the finding of fact that the husband and
wife had jointly accumulated the marital estate valued at $220,000.
This is the status of the District Court judgment as it reaches
us on this appeal.

There is another crucial event which occurred after entry
of the original judgment, which must be considered. After both
parties had foregone an appeal, the wife, in reliance upon the

decree awarding her "maintenance and support" as a substitute
for a "division of the property of Plaintiff [the wife] and
Defendant [the husband]", conveyed all her interest in the real
property to her husband, and also gave up any interest she had in
the personal property acquired during the marriage. Would she

have done this if she believed that either her remarriage or her
becoming fully self-supporting would automatically cut off the

monthly payments and terminate any claim she had to the marital
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assets? This, in effect, is what the trial court held, and
this in effect, is what this Court held.
The result is that if we presume no increase in valuation
of the marital estate, the husband paid close to $18,000 to
the wife in the form of monthly payments from August 1975
through March 1978. Thus, from the marital assets, the husband
has received property valued at $202,000 ($220,000 less $18,000)
and the wife has received $18,000. The husband has received
more than ten times what the wife has received. This can hardly
be classified as an equitable distribution of the marital assets.
I fail to see under these circumstances how either equity or
the law is on the side of the husband.
Stripped to its essentials, the majority opinion reasons
as follows: The plain meaning of the questioned clause in
the divorce decree is that only support and maintenance in
the traditional sense is contemplated. But if the plain reading

is not enough to justify this conclusion, then this, combined
with the factors considered by the trial court in arriving at
the monthly financial needs of the wife and the ability of the
husband to respond to those financial needs, is indicative that
no property interest, direct or indirect, was contemplated.

Thus, reaching the conclusion that no property interest
(direct or indirect) was contemplated, the majority concludes

that, unlike a property interest, the receipt of support and
maintenance is not a vested right; rather it is a charitable
gift, subject to the subsequent conditions contained in section
29-131, R.C.M. 1947, and its successor, section 48-330(2), R.C.M.
1947 (now section 40-4-208(2), MCA). Upon the happening of any
of these subsequent conditions contained in these statutes,
the right to receive support and maintenance is terminated. Here,
the wife's remarriage triggered the provision of the statute

providing that remarriage terminates the obligation to pay support
and maintenance.
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 If the meaning is so plain, the majority should merely
have confined itself to a discussion of the clause itself in
reaching the decision that the wife's support and maintenance
was terminated upon her remarriage. Furthermore, as I have
previously discussed, the majority totally ignored the implication
that a property right of some kind was recognized by the fact
that the trial court had found the wife and husband had jointly
accumulated the marital assets, and that support and maintenance
was awarded to the wife as a substitute ("in lieu of") for her
giving up specific claims to the $220,000 marital assets. The
majority ignored the crucial fact that in reliance upon the
decree, the wife conveyed all her interest in the real estate
to the husband and gave up any claim to specific personal
property assets accumulated during the marriage.
Nor can I give much weight to the factors allegedly con-
sidered by the trial court in arriving at the monthly payments.
The trial court chose not to apportion the marital assets
between the parties--that is, it chose to keep these assets
intact. In effect, it awarded them to the husband. As long
as the trial court chose not to order a division of the property,
which may have required a sale, it had to consider both the
ability of the husband to make monthly payments and the wife's
needs in arriving at what it considered a reasonable monthly
payment. If this were not done, the practical effect might have
been that the husband would have been compelled to sell some of
the assets in order to meet the monthly payments. This, ostensibly,
is what the trial court was trying to avoid. But, above all,
the vital factor is that the support and maintenance was awarded
as a substitute for a property division. This is not support
and maintenance in the traditional sense, subject to termination
upon the wife either becoming fully self-supporting or upon her
remarriage.
 Without question, in substituting support and maintenance
for an equitable property division, the trial court recognized
that the wife had a claim to an equitable division of the
marital assets, but for reasons known only to the trial court,
it chose to award this interest in the form of support and
maintenance. Under the circumstances of this case, I have
no hesitation in concluding that the wife's interest in support
and maintenance was a vested interest.
It appears that neither party had any control over the
terminology of the divorce decree. I say this because there is
nothing in the record to indicate whether either party suggested
the terminology contained in the questioned clause, or even
suggested this approach to the trial court. The District Court
file contains no proposed findings and conclusions, thus it is
difficult to determine the precise theory used by either the
husband or the wife.
By concluding that the wife has a vested right to support
and maintenance, I am not unmindful of the potential implications
of this result--namely, that the wife would have a claim to
$600 per month for the rest of her natural life being that the
trial court set no value on that portion of the marital assets
to which she was equitably entitled. This would mean that she
had the potential of realizing much more from the marital estate
than would be her just share.
Because the language used by the trial court is so poorly
chosen, it is impossible to determine the future rights of the
parties without additional proceedings in the trial court.
I would reverse the trial court and remand for a determination
of the value of the estate to which the wife is equitably entitled,
and then permit the $ 6 0 0 monthly payments to continue until that
value is satisfied. In the alternative, I would order that the
trial court equitably apportion the marital assets between the
husband and wife, assuming that they are still sufficiently

intact and not encumbered.
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 I t i s a gross i n j u s t i c e t o l e t t h e d e c i s i o n of t h e

t r i a l c o u r t s t a n d , t h e e f f e c t o f which i s t o r a t i f y a d e c i s i o n

t h a t t h e w i f e i s e n t i t l e d t o less t h a n one-tenth of t h e

m a r i t a l e s t a t e a f t e r s h e h a s g i v e n 2 7 y e a r s t o h e r husband a s

a w i f e and mother o f t h e i r 7 c h i l d r e n . T h i s r e s u l t should be

s a n c t i o n e d by n e i t h e r l a w n o r e q u i t y .