No. 14964
I N THE SUPREME COURT OF THE STATE OF M N A A
OTN
1980
LORETTA M. WINTERS,
P l a i n t i f f and Respondent,
-vs-
ROBERT G. WINTERS,
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 Eighth J u d i c i a l D i s t r i c t ,
I n C h o t e a u County, H o n o r a b l e J o h n McCarvel, J u d g e
presiding.
C o u n s e l o f Record:
For Appellant:
B a r r y T. O l s o n , Great F a l l s , Montana
F o r Respondent :
Donald O s t r e m , Great F a l l s , Montana
G r a y b i l l , O s t r e m , Warner & C r o t t y
Submitted on B r i e f s : March 3 , 1980
Decided : APR g 19841
,Qrc. r' :; ><, t .
Filed :
i l l . I ' - -
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
This is an appeal from an order entered in Choteau
County District Court denying Robert G. Winters' petition
for modification of a divorce decree.
Loretta M. Winters and Robert G. Winters were married
on June 2, 1956 in Columbus, Montana. Four children were
born the issue of the marriage, two of which reached the age
of majority prior to the order now in question. Because of
irreconcilable differences, a divorce complaint was filed by
Loretta Winters on December 10, 1974. A decree of divorce
was granted January 14, 1975.
A property settlement was incorporated into the decree
of divorce. Custody of the couple's four children was
awarded to Loretta. The decree provided for the support and
the
maintenance of these children anwhome as follows:
"The Defendant [is ordered to] pay Plaintiff the
sum of $500.00 per month as and for the support
and maintenance of the said minor children and
the support and maintenance of a home, and further
defendant to pay for all reasonable medical, dental,
optical, doctor and hospital expenses required for
and on behalf of said minor.children,and in
accordance with the provisions of Exhibit A
hereto attached for the period of 10 years from
and after the date hereof."
Robert Winters has fulfilled this provision without fail since
the time of issuance of the decree.
Robert Winters filed a petition and affidavit for modification
of the decree on April 17, 1978 requesting a reduction of
payments to an amount of $125 per child per month during
minority, i.e. $250 per month total. The change was precipitated
by the following summarized factors according to the petition:
(1) Mrs. Winters' financial situation has
changed in that although unemployed and without
income at the time of the divorce, she is now
earning a net income of $800 per month as an
automobile service manager and additionally has
recently inherited property.
(2) Only two of the four children are still minors
and the remaining two are not at home nor attending
college;
(3) Mr. Winters, recently divorced from his second
wife is now without her additional income which has
enabled him in the past to make the monthly payments,
is left with a net income of $1,160 per month and
unable to continue the payments at the previous rate.
The first hearing on the petition was held April 23,
1979. No testimony was presented. However briefs were to be
filed concerning authority of the District Court to modify
the agreement. Argument on this point centered on the question
of whether the decree could be modified because of the words
therein denominated "child support", or whether it was the
intent of the parties via the agreement to guarantee an
income of $500 per month for ten years as part of the property
settlement which was incorporated into the divorce decree.
During argument, the question of duress was introduced into
the case.
A final hearing was held on August 14, 1979. At that
time respondent moved that the petition be dismissed and
that the sole issue the court consider be duress or fraud
upon the court, and that all testimony be so restricted.
The court in effect so restricted the testimony.
The court entered its findings and conclusions on
August 22, 1979 denying the petition to modify. The court
found the existence of an agreement "settling the parties
(sic) property rights and [which] provided for support of
the minor children." It went on to find that Mr. Winters
agreed to the demand of payment of $500 per month for ten
years in return for Mrs. Winters not contesting the divorce
which would "drag the husband's lover through the mud." No
duress or fraud was found nor were any circumstances found
to make the divorce unconscionable.
It is from this order which Robert Winters appeals.
Appellant frames the issues for our review as follows:
- 3-
(1) Did the District Court err in determining the
agreement could not be modified?
(2) Did the District Court err in curtailing the evidence
presented?
(3) Did the District Court have authority, upon the record
before it, to make the findings and conclusions it did?
(4) Did the District Court make findings and conclusions
sufficient to warrant the order it made?
(5) Are the findings of fact supported by the evidence?
The basic conflict which arises in this case is as follows:
the husband contends the decree provision constitutes a child
support issue which may be modified whereas the wife contends
and the District Court agreed, the provision constitutes a
contractual issue and therefore may not be modified without
the mutual consent of both parties. We affirm the decision of
the District Court.
It is clear to this Court that the contested payment
provision creates a contractual obligation on the part of the
husband to pay to the wife the amount of $500 per month for a
period of ten years as a minimum sum to be used for the support
and maintenance of the children and home. This contractual
--
obligation is based on a quid pro quo which is the consideration
for the contract. The court stated in its findings:
"The husband had found another woman and wanted
a divorce so that he could marry her. The wife
advised her husband that unless he agreed to
pay the sum of Five Hundred Dollars ($500.00)
per month as child support for the support of
the children and for the purpose of support and
maintenance of a home for a period of ten (10)
years, that she would contest the divorce and
'drag the husband's lover through the mud.' The
husband chose to agree to meet the demands of the
wife. Under those provisions the Property Settlement
Agreement was signed by the parties, incorporated
into the Decree, and the husband shortly thereafter
married his girlfriend."
The payment provision of the contract is integral to the
agreement of the parties, as a matter of law. The provision
may not be chopped-up and modified as the husband advocates
without destroying the contract itself. See Washington v.
Washington (1973), 162 Mont. 349, 512 P.2d 1300.
What we hold here has no bearing on the power of the
court to modify agreements of the parties regarding child
support in later applications. Butler v. Brownlee (1969),
152 Mont. 453, 451 P.2d 836. The question before the court
here did not involve the welfare of the children, in which
event the court could modify any agreement of the parties to
achieve their protection. Gessell v. Jones (1967), 149 Mont.
418, 427 P.2d 295. Instead, the District Court was presented
with a provision of contract law. The courts will not relieve
a party of his contractual agreement, in light of after events.
Link v. State By & Through Dept. Of Fish & Game (1979),
Mont . , 591 P.2d 214, 36 St-Rep. 355; Meyer v. ~ i e s e l
Equipment Co., Inc. (1977), 1 Kan.App.2d 574, 570 P.2d 1374;
Wilson & Co. v. Fremont Cake & Meal Co. (1950), 153 Neb. 160,
43 N.W.2d 657. That is the situation here.
The decision of the District Court is affirmed.
.:
;
i Justice u
We Concur:
Chief Justice