No. 84-527
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
IN RE THE MARRIAGE OF
RICHARD RUSH ,
Petitioner and Respondent,
and
BARBARA RUSH
Respondent and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Larrivee Law Offices, Missoula, Montana
For Respondent:
Richard J. Pinsoneault, St. Ignatius, Montana
Brian J. Smith, Polson, Montana
Submitted on Briefs: March 7, 1985
Decided: April 30, 1985
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Barbara Rush, defendant in the original dissolution
proceeding (hereinafter Ra-rbara) petitioned the District
Court of the Fourth Judicial District, Lake County, to modify
the parties1 original divorce decree entered in 1975. The
petition prayed for an increase in child support payments,
additional maintenance payments, a lump sum payment of
$15,000, plus costs and attorney's fees. After a hearing,
the District Court issued an order increasing child support
payments and denying all other requested relief. From this
order Barbara appeals. We affirm.
Richard and Barbara Rush were married in 1960, had three
children and were divorced in 1975. Richard Rush is a
medical doctor with a general practice in the State of Texas.
Barbara Rush worked as a secretary for a chiropractor in
Ronan, Montana for seven years after the divorce and then
quit in 1982 to attend the University of Montana. She is
currently a student at the University.
The original. divorce decree which incorporated a
settlement agreement provj-ded that Dr. Rush pay $200 per
child per month until each child attained the age of majority
and $400 per month in alimony until the alimony payments
reached a total of $24,000. A provision for renegotiation of
the terms of the settlement was included therein.
Two of the children have been emancipated and are no
longer in need of support. The youngest child, Richard Jr.,
is 17 years of age and still dependent upon his parents for
support. The District Court found that a substantial change
in circumstances with respect to Richard Jr. warranted
increasing child support payments for him from $200 to $400
per month. This finding is not contested on appeal.
Barbara Rush contends that Dr. Rush promised to give her
$15,000 to buy a house. There is nothing in the divorce
decree concerning this promise. After reviewing the record,
we find that the District Court was correct in finding no
enforceable agreement existed.
Dr. Rush has made all the payments due under the divorce
decree. In addition, he incurred educational expenses for
his daughters, medical expenses for all the children, and he
provided other benefits not required by the decree. Dr. Rush
continued to pay maintenance to his ex-wife after his
obligation of $24,000 under the original decree was
satisfied. He has paid an additional $18,000 in maintenance.
Barbara contends that the District Court abused its
discretion by not considering the statutory criteria set
forth in S 40-4-203, MCA, when considering her request for
maintenance. Section 40-4-203, MCA, lists the various
criteria referred to by appellant in her brief.
Since this is not an initial dissolution proceeding
where the issue of maintenance is being considered for the
first time nor is it the fjrst opportunity that one spouse
has to litigate the question of maintenance, S 40-4-203, MCA,
is clearly inapplicable. In this case the District Court
entertained a petition for modification of maintenance
payments under the 1975 decree.
The renegotiation provision contained in the original
decree provides that the terms of the decree can only be
modified upon approval of the court. Any modification,
therefore, must be made pursuant to S 40-4-208, MCA.
The District Court found that Dr. Rush had met and
exceeded all obligations required of him under the divorce
decree entered in May 1-975. No payments under the 1975
decree were due or accruing at the time the modification
petition was filed. In Frauhofer v. Price (19791, 3-82 Mont.
7, 594 P.2d 324, we stated that because plaintiff is not
currently receiving payments under the original decree an
ad-ditional award of maintenance is not necessarily precluded.
Frauhofer involved allegations of fraud. No fraud is alleged
in the instant case. We think the fact that maintenance
payments are no longer due under the original decree does not
as a matter of law prec1ud.e an additional maintenance award.
However, this fact should be considered when the District
Court rules whether or not modification is justified. Tn
many cases the amount and duration of maintenance payments
are bargained for and the fact that the obligation recited in
the decree is satisfied must be considered when applying S
40-4-208, MCA.
Section 40-4-208(2)(b), MCA, provides:
"(b) Whenever the decree proposed for modification
contains provisions relating to maintenance or
support, modification under subsection (1) may only
be made:
" (i) upon a showing of changed circumstances so
substantial and continuous as to make the terms
unconscionable; or
" (ii) upon written consent of the parties."
Appellant contends that the District Court found a
change of circumstances so substantial as to make the terms
unconscionable because at the close of the hearing the
District Court denied respondent's oral motion to dismiss the
appellant's petition. Such a contention is untenable.
Failure to dismiss appellant 's modification petition during
the trial has no effect on the court's final order; it is
simply an interlocutory ruling.
It is true that the District Court did not specifically
sta-te in its findings that there was no substantial change in
circumstances. Such a conclusion, however, is implicit from
the factual findings. The District Court found that
respondent had met and exceeded all obligations under the
original decree with respect to maintenance. Respondent
gratuitously paid the petitioner at least $18,000 more than
the fixed amount he was required to pay under the 1975
decree. The findings of fact of the District Court clearly
show that although the respondent has the ability to pay
additional maintenance, the criteria set forth in 5
40-4-208(2) (b)(i), MCA, have not been satisfied by Barbara.
The appellant also requested attorney's fees in her
petition. No evidence was submitted at the hearing
concerning attorney's fees and this fact was noted by the
District Court in its findings. This is sufficient reason to
deny appellant attorney's fees and it conforms with the
requirement set forth in Bowman v. Bowman (Mont. 1981), 633
P.2d 1198, 38 St.Rep. 1515, and subsequent cases that hold
the court must state its reasons for denying attorney's fees.
Affirmed.
We Concur: