No. 85-538
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN RE THE MARRIAGE OF
VYONNE G. HEREFORD,
Petitioner and Appellant,
and
FRANK G. HEREFORD,
Respondent and Respondent.
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:
Ferguson & Mitchell; Carol Mitchell, Missoula, Montana
For Respondent:
Tipp, Hoven, Skjelset & Frizzell; Raymond P. Tipp,
Missoula, Montana
Submitted on Briefs: May 30, 1986
Decided: August 21, 1986
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
This is an appeal from the Findings of Fact, Conclusions
of Law and Order entered by the District Court of the Fourth
Judicial District, Missoula County. The District Court
refused to find Frank Hereford in contempt for failure to
comply with a divorce decree, and awarded Frank his
attorney's fees.
In 1979 the Herefords were divorced. Mr. Hereford was
given custody of the children, and was allowed to stay in the
family home until July 1981. The home was the only
substantial asset of the parties and after the children
reached eighteen, it was to be sold and the proceeds divided
between the parties.
In March 1985, Vyonne Hereford moved for a temporary
restraining order and order to show cause as to why Frank
should not be held in contempt for failure to comply with the
dissolution decree. She alleged that several items of
personal property have not been divided between the parties.
She also alleged that Frank had not maintained the real
property or placed the house for sale. She requested that
she be allowed to sell the house and have the proceeds
equitably divided.
A hearing on the motion was held in June 1985. The
District Court found that the allegations in Vyonne's
petition were untrue and so unfounded upon reasonable grounds
as to constitute harassment. The court refused to hold the
husband in contempt, quashed the temporary restraining order,
and awarded Frank his attorney's fees. From this order,
Vyonne appeals.
The wife raises three issues on appeal:
1. Does the District Court possess any authority, under
the Uniform Marriage and Dissolution Act (UMDA), Title 40,
MCA, or otherwise, to award attorney fees for "vexation" in
noncustodial litigation, without taking into consideration
the financial circumstances of the parties?
2. In the circumstances of this case, was the court
justified in awarding attorney's fees to husband, where wife
made certain factual errors in her preliminary affidavit, but
showed at hearing that the primary marital asset (and the
only one in which she had been awarded a substantial interest
under the 1979 divorce decree) , the family home, was unsold
in 1985, though required to be sold in mid-1981 by the terms
of the decree?
3. Was the court justified in issuing an order refusing
to take any action on, or even address, the issue of
effectuating the 1979 decree, in effect providing husband
with free housing, and indefinitely confiscating wife's share
of the marital estate?
The first issue is whether the District Court has the
authority under the UMDA to award attorney's fees for
vexation in noncustodial litigation, without taking into
consideration the financial circumstances of the parties. We
hold it does not. Under the UMDA, there are two statutes
which allow district courts to award attorney's fees against
a party. The first is S 40-4-219 (2), MCA, which allows an
award of attorney's fees against a party seeking modification
of a child custody decree if the court finds the modification
action is vexatious and constitutes harassment. That statute
does not apply to the case at hand. This is not a child
custody argument.
The second statute which authorizes awards of attorney's
fees is $ 40-4-110, MCA. That statute provides that, after
considering the financial resources of both parties, the
court may order a party to pay a reasonable amount for
attorney's fees. The purpose of this statute is to equalize
the status of the parties in a dissolution proceeding.
Thompson v. Thompson (Mont. 1981), 630 P.2d 243, 244. It was
not intended to be punitive. Thus § 40-4-110, MCA, does not
give the District Court authority to award attorney's fees in
this case without considering the financial resources of the
parties.
The second issue on appeal is whether under the
circumstances of this case the District Court was justified
in awarding attorney's fees to the husband. We hold it was.
The general rule is that a party is not entitled to
attorney's fees absent a specific contractual provision or
statutory grant. In Re Marriage of Cannon (Mont. 1985) , 697
P.2d 901, 903, 42 St.Rep. 348, 351; Martin v. Crown Life
Insurance Co. (Mont. 1983), 658 P.2d 1099, 1104, 40 St.Rep.
216, 221. However this Court has recognized a narrow
exception to that rule in Foy v. Anderson (1978), 176 Mont.
507, 580 P.2d 114. In Foy we stated that the District Court
reserves the power to grant complete relief under its equity
powers, which may include awarding attorney's fees in rare
cases. Foy, 580 P.2d at 116-17. In two later cases, we
recognized that the award of attorney's fees is within the
district court's discretion and that absent an abuse of
discretion, the district court's determination will stand.
Martin v. Randono (Mont. 1981), 623 P.2d 959, 962, 38 St.Rep.
209, 212; Joseph Russell Realty. Co. v. Kenneally (1980), 184
Mont. 496, 505, 605 P.2d 1107, 1112. In this case we hold
the District Court did not abuse its discretion. We so hold
for two reasons. First, the allegations in the motion for
the temporary restraining order and accompanying affidavit
were untrue. Second, the language of the original divorce
decree stated:
[Tlhe real property acquired by the parties at 4318
Rainbow Drive, Missoula, Montana, shall remain in
the possession of the Respondent to 1 July 1981,
during which time Respondent is ordered to maintain
and insure the said property and to pay and
discharge the mortgage payments due thereon.
Immediately following July 1, 1981, the parties
shall cause the said property to be appraised by a
qualified appraiser, and placed for sale, and upon
said sale, the net proceeds shall be divided
equally between the Petitioner and Respondent.
The language of the decree does not impose a duty on
Frank alone to sell the house. It charges both parties with
the responsibility of listing and selling the house. In
bringing this contempt action against Frank, Vyonne forced
him to incur attorney's fees to defend himself. The District
Court did not abuse its discretion in awarding Frank those
attorney's fees.
The third issue raised by appellant is whether the
District Court abused its discretion in taking no action to
enforce the property settlement decree. In her original
motion for the temporary restraining order, the appellant
requested that she be authorized to list and sell the house.
The problem in this case is in the drafting of the
original dissolution decree. The language "the parties shall
cause the said property to be appraised by a qualified
appraiser, and placed for sale . . . ." is not a model of
clarity in drafting. The decree places no specific burden on
an identifiable party within any time period. It requires
only that someone appraise and list the house. It
technically does not even require the house to be sold. The
property could be, and has been, listed for years without
selling. Yet sales remain within the language, if not the
spirit, of the decree. Clearly the decree must be modified
to place specific burdens on identifiable parties to get the
house sold within a reasonable time. Since the District
Court did not address this issue, we remand this case to the
District Court to make such further provision for sale of the
house as may be needed. The remainder of the decree is
affirmed.
Remanded with instructions. No costs to either party.
cl
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Justice
We Concur:
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