NO. 8 8 - 5 8 8
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
IN RE THE MARRIAGE OF
PATTI JEAN ROBERTSON,
Petitioner and Appellant,
and
RICK LEE ROBERTSON,
Respondent and Respondent.
APPEAL FROM: ~istrictCourt of the Eighth ~udicial~istrict,
In and for the County of Cascade,
The Honorable John McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Cameron Ferguson; ~artelius,Ferguson & Baker, Great
Falls, Montana
For R&spondent :
ii
. , ' Barbara Bell; Bell & Marra, Great Falls, Montana
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submitted on ~riefs: Feb. 23, 1 9 8 9
Decided: May 18, 1989
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
This is an appeal from an order of the District Court of
the Eighth Judicial District, Cascade County, which modified
the decree of dissolution relating to maintenance for
appellant. We reverse and remand.
The principal issue raised by Patti Jean is whether a
district court may modify maintenance provisions for a wife,
where the district court has approved and incorporated in the
decree a property settlement agreement presented by the
parties. We hold here that the District Court has no such
power and so reverse. The specific provisions of the
property settlement agreement here are important to our
holding.
Patti Jean Robertson, appellant, and Rick Lee Robertson
were married on June 24, 1983, in Great Falls. On April 28,
1985, their only child, a son was born. A petition for
dissolution was filed by appellant on ~ p r i l 10, 1986. A
decree of dissolution of marriage was granted on December 18,
1986 on the grounds that the marriage was irretrievably
broken and that there was serious marital discord which
adversely affected the attitudes of both parties. A property
settlement, executed on September 19, 1986 was approved and
incorporated into the decree. Although the parties agreed to
joint custody of their child, the mother had physical custody
and primary care of the child. The father had rights to
visitation which he had the option of exercising.
The decree provided for the support and maintenance of
the child as follows:
4. SUPPORT: Wife contemplates that for the next
four years she will be attending the University of
Montana in Missoula, Montana. With the college
education and degree, Wife contemplates that she
will then be able to obtain a much higher paying
job then [sic] she could obtain at the current
time. Husband agrees to pay wife $500 per month
for the next four years while she is attending
school plus an additional period of six months
following her graduation at the end of the fourth
school year to allow her time to find good
employment after graduating and set up a household.
in the location where she will be working. $250
per month of this $500 per month shall be spousal
maintenance. The other $250 per month shall be
child support. At the end of six months after Wife
graduates, husband shall be required to pay $250
per month as child support. There shall be no
further spousal maintenance obligation ... .
The parties are agreed that there are no issues relating
to the right of the spouse to the child support payments set
forth in the property settlement agreement.
The decree additionally contains the following
provisions:
5. PROPERTY DIVISION: Husband shall be able to
retain all rights which he has in the retirement
account and profit sharing account and other forms
of investment. [The value of the profit sharing
plan at the time of the divorce was $20,106.00.
The value of the retirement plan was $1,716.00.1
Husband agrees to pay wife the sum of $2,000 per
year for each of the next four years to assist wife
in her tuition, books and other school expenses.
This sum can be paid quarterly. Payment for the
first quarter is due September 15, 1986.
The parties have offered their house in Great
Falls for sale. Out of the net sales proceeds,
Husband shall be entitled to pay his parents the
remaining sum due on the loan which the parties
borrowed for part of the down payment. This sum,
however, may not exceed the sum of $2,000. Husband
may also reimburse himself for the amount of
attorney fees which he has paid Wife's attorney
under the provision of this agreement labeled
attorney fees [$850.00] . The remaining balance
shall be equally split between the parties.
8. MODIFICATION OF AGREEMENT: Husband and Wife
agree that except as to provisions involving child
custody, support and visitation this Agreement may
not be modified by any subsequent Court order
following the divorce, except on express written
acknowledged consent of the parties.
9. WAIVER OF PROPERTY RIGHTS: All property
received and retained by the parties pursuant
hereto shall be the separate property of the
respective parties, free and clear of any right,
interest or claim of the other party, and each
shall have a right to deal with and dispose of his
or her separate property, as fully and effectively
as if the parties had never been married.
10. MUTUAL RELEASE: Subject to the provisions of
this Agreement, each party by this Agreement for
himself or herself, his or her heirs, legal
representatives, executors, administrators, and
assigns, releases and discharges the other of and
from all causes of action, claims, rights or
demands, whatsoever which either of the parties
ever had or now has against the other.
The parties also agreed that:
In the event any party breaches the terms of this
agreement in the future, the prevailing party in
any court proceeding shall be awarded his or her
attorney fees from the other party.
On November 2, 1987, the husband petitioned the court to
modify the spousal maintenance provisions set out above. On
January 27, 1988, a hearing was held on that motion and on
October 11, 1988, the ~istrict Court issued an order
modifying the Decree of iss solution. This order deprived the
mother of all spousal maintenance and the $2,000 .OO per year
for her tuition and other college expenditures. The mother
appeals that order.
Modification of Court Decree
Rick Robertson contends that the payments to patti
Robertson constitute maintenance and not a property
settlement, and that, therefore, the court should modify the
agreement because it was unconscionable. The statute
governing this premise is 5 40-4-208, MCA (1987).
Modification and termination of provisions .- for
maintenance, support, and property disposition.
(1) Except as otherwise provided in 40-4-201(6), a
decree may be modified by a court as to
installments accruing subsequent to actual notice
to the parties of the motion for modification.
(2) ... (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 continuing as to make the terms
unconscionable;
However, 5 40-4-201(6), MCA ( 1 9 8 7 ) , as referred to in the
above statute directs us that
Except for terms concerning the support, custody,
or visitation of children, the decree may expressly
reclude or limit modification of terms set forth
n
: the dTcree if the separation agreement so
provides. (~mphasis added.)
Under the statutes, the ~istrict Court does have the
power to reopen a prior decree on the grounds of
unconscionability if the support at issue is child support,
custody, or maintenance that is not integrated with a
property settlement.
The property disposition provisions of a
dissolution decree may only be modified where the
parties give their written consent or where the
agreement is subject to rescission or modification
under the general law governing all contracts.
In re Marriage of Richardson (1985), 214 Mont. 353, 693 P.2d
524.
patti Robertson entered into a property settlement and
gave up the right to any future support beyond four years of
college and the six months thereafter. She relinquished
claims against Rick Robertson's retirement, savings and
profit sharing accounts acquired during the marriage. These
accounts were subject to discovery at the time of the
dissolution and patti Robertson had the right to implement
full discovery procedures. On December 31, 1986, those
accounts showed the following balances: Employee Stock
Ownership Plan $20,106.00 and Carpenter's Retirement
$1,716.00. Patti gave up that right her claim to those funds
as consideration for the exchange promise from Rick Robertson
that he would pay her tuition of $2,000.00 per year ($167.00
paid monthly) and payments of $250.00 per month in lieu of
that property.
The couple had agreed that ~ i c kwould sell the family
home in which they were living and from the proceeds of that
sale he would repay patti Robertson's attorney fees of
$870.00. They were to have split the remainder of any
proceeds after all expenses were paid. After the dissolution
was final, Rick moved out of the home which they purchased
for $54,000.00. patti had moved out before the dissolution.
In its vacant state it sold for $47,000.00. ~ i c kdid not
divide the proceeds with patti quite as he agreed. He
himself received "$3,000.00 or so" from the sale, paid the
$870.00 attorney fees and gave Patti $1,000.00.
It is clear to this Court that the wife's monthly
payments were an inseverable part of a property settlement
arrangement. The obligation was undertaken by the husband in
exchange for the wife's forbearance in regard to the property
of the marital estate. This Court in Washington v.
Washington (1973), 162 Mont. 349, 356, 512 P.2d 1300, adopted
the rule that
... if support provisions have been made an
inseverable part of the agreement between husband
and wife to divide their property, and the court in
the divorce action approves the agreement, the
provisions of such agreement cannot thereafter be
modified without the consent of both of the
contracting parties.
It is obvious here as it was in washington, 162 Mont. at
354, 512 P.2d at 1303, that one cannot sever the maintenance
provision from the property settlement agreement between the
parties without destroying the contract.
We hold that the contractual property agreement was not
subject to modification and the ~istrict Court erred in so
modifying.
Timeliness of Appeal
The husband contends that the judge's oral comments made
during the hearing of January 27, 1988 constituted the entry
of final judgment. Husband's counsel argues that there was
no doubt what the court ordered and that the husband relied
on that order and stopped paying maintenance at that time.
The written order of the court was issued October 11, 1988.
patti appealed shortly thereafter. Husband argues that patti
should have appealed within 30 days of the January hearing.
Pursuant to Rule 77 (d), M.R.Civ.P., notice of entry of
judgment must be served by the prevailing party upon all
parties who have made an appearance in the cause. ank kin son
v. Picotte (Mont. 1988), 766 P.2d 242, 45 St.Rep. 2259. It
is the filing of the notice of entry of judgment that begins
the running of the time limits for filing a notice of appeal.
Hankinson, supra; h orris on v. ~ i g b e e (1983), 204 Mont. 501,
668 P.2d 1029. If no notice of entry of judgment has been
served on the losing party, the right to appeal has not
expired. Haywood v. Sedillo (1975)' 167 Mont. 101, 535 P.2d
1014. Unless post-trial motions are made by a party under
Rule 52 or 59, I4.R.Civ.P. the appealing party is not required
to adhere to the 30 day period for filing a notice of appeal
until proper service of notice of entry of judgment is made.
Hankinson, supra. pierce Packing Co. v. ~istrict Court
(1978), 177 Mont. 50, 579 P.2d 760.
The record before us indicates that no entry of judgment
was served by the prevailing party as required under Rule 77.
since it is necessary for this step to be taken before the
time limit for the appeal begins to run, the appeal was
timely. The time limitations had not yet begun to run.
Moot Issue
The next issue raised is whether, as the District Court
found, there was a change in circumstances so substantial and
continuing as to make the original custody and property
settlement agreement spousal maintenance provisions
unconscionable.
Because we hold that the decree in this case cannot be
modified as above stated, this issue is moot.
Attorney Fees
The property settlement agreement incorporated in the
decree provides for attorney fees to the prevailing party
when any party breaches the terms of the property settlement
agreement. Wife is entitled to attorney fees here and in the
District Court.
The order of the District Court is reversed and the
original decree is reinstated. Attorqey fees on remand to
1
the wife as the prevailing party. , (--
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Justice /I
We Concur: