No. 85-60
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
IN RE THE I'JARRIAGE OF
.
VULLOY B JONES,
Petitioner and Respondent,
and
LARRY JONES,
Petitioner and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable James B. Wheelis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ellingson & Moe; Jon E. Ellingson, Missoula, Montana
For Respondent:
Terry A. Wallace, Missoula, Montana
-- -- -
Submitted on Briefs: July 25, 1985
Decided: November 19, 1985
Filed :
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Clerk
Mr. J u s t i c e 1,. C. Gulbrandson d e l i v e r e d t h e Opinion o f the
Court.
Larry Jones appeals an order of the Missoula County
District Court directing him to pay his ex-wife, Vulloy,
$4,851.67 as back payments of maintenance and $2,146 as
reasonable attorney's fees. The i s s u e s o n a p p e a l a r e : (1)
w h e t h e r t h e D i s t r i c t C o u r t e r r e d i n r u l i n g t h a t h u s b a n d owed
w i f e m a i n t e n a n c e u p o n h i s c e s s a t i o n of c h i l d s u p p o r t p a y m e n t s
to her; (2) whether the District Court erred in only
partially enforcing wife's promissory note t o husband; and
(3) whether the District Court e r r e d i n granting wife her
attorney's fees. Affirmed i n p a r t and remanded.
I n August 1979, L a r r y and V u l l o y J o n e s filed a joint
petition for dissolution of marriage in Missoula County
District Court. A f i n a l d e c r e e d i s s o l v i n g t h e i r m a r r i a g e was
e n t e r e d t h a t same m o n t h . As t h e J o n ~ s y o i n tp e t i t i o n h a d
requested, the final decree granted full custody of the
p a r t i e s 1 two minor c h i l d r e n t o t h e wife. The f i n a l d e c r e e
orders the husband (appellant) to pay $150 p e r month p e r
child to the wife (respondent). In the paragraph which
immediately follows t h a t provision, t h e decree s t a t e s ;
Upon t e r m i n a t i o n of t h e c h i l d s u p p o r t
o b l i g a t i o n , LARRY E. JONES s h a l l p a y t o
VULLOY B. JONES t h e sum o f $ 1 0 0 . 0 0 p e r
month, a s and f o r h e r maintenance, u n t i l
her remarriage o r death.
These p r o v i s i o n s o f t h e f i n a l decree a l s o m i r r o r t h e language
of t h e Jones1 joint petition f o r dissolution.
Appellant paid the $150 p e r month p e r c h i l d payments
u n t i l A p r i l 1980. I n e a r l y 1 9 8 0 , r e s p o n d e n t d e c i d e d t o move
t o C a l i f o r n i a and s h e approached a p p e l l a n t f o r a $1,000 l o a n .
A p p e l l a n t a g r e e d t o l o a n r e s p o n d e n t $1,000 i f s h e would s i g n
a promissory n o t e i n h i s f a v o r f o r $2,000.
Appellant testified that he asked respondent to sign
the $2,000 promissory note because respondent owed him well
over $1,000 prior to the $1,000 loan. Appellant testified
that respondent owed him over $1,000 (before the loan) for
money he had given her in addition to the child support
payments, for a pickup truck he loaned her to use, for a
trailer hitch he put on her car, and for her parking tickets
he had paid.
Respondent testified that appellant told her he did not
expect her to pay the note but that he needed the note for
income tax purposes. She also testified that appellant had
loaned her a pickup truck for her use. Respondent denied or
did not remember that appellant had given her other money or
support.
Respondent signed the $2,000 promissory note and
appellant then gave her $1,000. The note carried 14%
interest and was due on February 13, 1981. Respondent then
moved to California in April 1980.
Upon respondent's move, the parties' two minor children
went to live with their father. Appellant raised and sup-
ported the children beginning in April 1980. Appellant did
not make the child support payments to his ex-wife that month
or thereafter. Appellant did not commence maintenance pay-
ments to his ex-wife until forced to do so by this lawsuit.
In August 1983, respondent filed a petition for
enforcement of decree. Respondent alleged that appellant's
child support obligations had ended in April 1980 and that,
under the terms of the final decree, appellant owed her
maintenance from that time. Appellant filed a response to
the petition and a counterclaim. As his counterclaim,
appellant alleged that respondent had not paid the promissory
note, which was due. Respondent answered the counterclaim
admitting that she had not made any payments on the note but
alleging that she had not received sufficient consideration
for the $2,000 note. She further alleged that appellant
fraudulently induced her to sign the note.
In October 1984, the District Court issued its findings
of fact, conclusions of law and order. The District Court
found that, under the final decree, respondent was to receive
maintenance of $100 each month upon termination of
appellant's child support obligation. The court found that
appellant's child support obligation terminated in February
1980. The court further found that appellant had made no
maintenance payments. The court concluded that appellant
owed respondent $6,505, including interest, for maintenance
arrearages.
The court found that respondent was entitled to recover
her reasonable attorney's fees on this action. The court
ruled that one-third of the recovery of $6,505 (or $2,146)
was a reasonable attorney's fee.
Lastly, the court found that respondent owed appellant
$1,653.33, including interest, on the loan made to her by
appellant. The court offset this amount against what
appellant owed respondent in maintenance arrearages.
The first issue is whether the District Court erred in
ruling that appellant owed respondent maintenance upon his
cessation of child support payments to her. The standard of
review for that decision is set forth in Rule 52(a),
M.R.Civ.P;
Findings of fact shall not be set aside
unless clearly erroneous, and due regard
shall be given to the opportunity of the
trial court to judge of the credibility
of the witnesses.
This Court's function is to review the district court's
findings in light of the record and make certain the find-ings
are not clearly erroneous. Carr v. Carr (Mont. 1983) , 667
P.2d 425, 40 St.Rep. 1263; Peckenpaugh v. Peckenpaugh (Mont.
1982), 655 P.2d 144, 39 St.Rep. 2132.
The final decree provided that appellant would pay
respondent maintenance upon the termination of his child
support obligation. Appel-lant contends that this child
support obligation (the termination of which would trigger
his maintenance obligation) refers to his general duty to
support and raise his children. Appellant correctly cites
Torma v. Torma (1982), 198 Mont. 161, 645 P.2d 395; and
Chrestenson v. Chrestenson (1979), 180 Mont. 96, 589 P.2d
148, for the proposition that a parent's general obligation
to support his child ends upon that child's emancipation at
age eighteen. See also S S 40-4-208 ( 5 ) , 41-1-101, 40-6-211,
MCA. Appellant did meet this general obligation of support
while his children lived with him (and presumably until they
were eighteen). Therefore, appellant asserts that the child
support obligation ended upon his youngest child's eighteenth
birthday and that his maintenance obligation arose on that
date. The resolution of this issue hinges on whether the
child support obligation referred to in the final decree is
that general obligation cited in Torma and Chrestenson.
In effect, the District Court found that the child
support obligation (as referred to in the final decree) was
the specific, monthly payments to be made by the appellant
and not appellant's general obligation. Hence, once
appellant stopped the monthly payments, his maintenance
obligation began. This conclusion is supported by the fact
that the reference in the final decree to the termination of
the child support obligation followed directly after the
court's order of monthly child support payments. Thus, it is
inferable that the disputed child support obligation (the
termination of which triggered the maintenance payments) was
that obligation set up in the immediately preceding sentence.
More importantly, the court, in making this ruling, was
interpreting its own final decree. We decline appellant s
invitation to second guess the District Court's
interpretation of its own decree. We hold that the District
Court's ruling, that appellant's maintenance obligation began
when he stopped making monthly child support payments to
respondent, was not clearly erroneous.
The second issue is whether the District Court erred in
only partially enforcing respondent's promissory note to
appellant. In 1980, respondent signed a $2,000 promissory
note, with 14% interest, in appellant's favor. The lower
court held that respondent owed appellant $1,653.33,
including interest, up through October 1984. Respondent
testified that the only other consideration she received for
the note, besides the $1,000 loan, was the use of a pick-up
truck. Thus, there was evidence to support the lower court's
decision to only partially enforce the note. The lower
court's ruling on this issue was not clearly erroneous and
must be upheld.
The third issue is whether the District Court erred in
awarding respondent her attorney's fees. Appellant contends
that there was insufficient evidence to establish the
reasonableness of the amount of the award and the need for
the award. Appellant also complains that the District Court
made no written findings as to the need for the award.
Appellant cites the oft-repeated rule, " . . . that written
findings are required to establish both the need and
reasonableness of an award of attorney's fees. " See, e.g.,
Duffey v. Duffey (Mont. 1981), 631 P.2d 697, 699, 38 St.Rep.
1105, 1107.
There may be sufficient evidence in the record to find
that the wife had a genuine need for the award of attorney's
fees. She testified that she lost her job upon returning to
California after what was apparently the preliminary hearing
in this case. She also testified that she told appellant,
prior to executing the promissory note, that there was no way
she could repay him. However, the District Court made no
findings of fact as to the wife's need for an award of
attorney's fees.
In Duffey, the trial court failed to make essential
written findings establishing both the need and the
reasonableness of an award of attorney's fees. We held that
this failure required that we vacate the award of attorney's
fees, even though only $200 was awarded. Accordingly, we
vacate the trial court's award of attorney's fees in the
instant case.
Furthermore, we note that the District Court made
findings as to the reasonableness of the amount of the award
of attorney1s fees. The court found that a reasonable
attorney's fee for the recovery of $6,505 is one third of
that amount. The court reasoned that one third is a standard
attorney's fee for the recovery of an indebtedness.
On June 6 , 1985, this Court filed its new Rules of
Professional Conduct relating to the Client-Lawyer
Relationship. Rule 1.5, entitled Fees, states at section
(a):
A lawyer shall not enter into an
arrangement for, charge, or collect:
(1) a n y f e e i n a d o m e s t i c r e l a t i o n s
m a t t e r , t h e payment o r amount o f w h i c h i s
c o n t i n g e n t upon t h e s e c u r i n g o f a d i v o r c e
or upon the amount of alimony or
support ...
There i s no evidence in the r e c o r d t h a t t h e r e was a
contingent fee agreement between the respondent and her
attorney, but because the court may have considered the
amount r e c o v e r e d a s t h e sole b a s i s f o r t h e a w a r d , a n d b e c a u s e
of the lack of f i n d i n g s a s t o t h e need f o r t h e award, we
vacate the award of attorney's fees and remand for
reconsideration by the trial court and the entry of
appropriate findings of f a c t .
Marriage of Jones
Combined Opinion