NO. 89-585
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
IN RE THE MARRIAGE OF
BEATRICE BECKER,
Petitioner and Respondent/Cross-
Appellant,
and
RODERICK R. BECKER,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighteenth ~udicialDistrict,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Helene Orenstein, Attorney at Law, Bozeman, Montana
For Respondent/Cross-Appellant:
Karl P. Seel, Attorney at Law, Bozeman, Montana
Submitted on Briefs: June 28, 1990
Decided: September 13, 1990
Filed:
I
' Clerk
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from the District Court of the Eighteenth
Judicial District, Gallatin County, Montana. Beatrice Becker
petitioned the District Court for injunctive relief to prevent her
former husband, Roderick Becker, from interfering with the sale of
real property and distribution of the proceeds pursuant to their
1984 dissolution decree. The District Court ordered that the
property be sold as contemplated by the original property
settlement agreement, but modified the distribution of the assets
by allowing the husband a set-off for the amount he would have
received for child supportpayments. The District Court determined
that the wife's share of the profits was $5,978.06 less one-half
of the closing costs. After the filing of the husband's Notice of
Appeal, the District Court issued an order nunc pro tunc to
correct mathematical errors, reducing the wife's award to $2,008.06
less one-half of the costs. From this judgment, the husband
appeals and the wife cross-appeals. We affirm in part and remand
in part.
The issues are:
1. Did the District Court err in modifying the property
settlement and child support agreement?
2. Did the District Court abuse its discretion in valuation
of the marital real property?
3. Did the District Court err in issuing an order nunc pro
tunc after the husband filed the Notice of Appeal?
4. id the District Court abuse its discretion in refusing
to award attorney's fees to the husband?
Beatrice and Roderick Becker were married June 10, 1969. The
wife filed a petition for dissolution on April 4, 1984. At the
time of the dissolution, two children were living with the couple,
a daughter from the present marriage, age 13, and the wife's son
from a previous marriage, age 17. The husband worked as a self-
employed carpenter who contributed to the marital income during
the marriage, but due to a disability contributed a minimal amount
to the family income for a time previous to the dissolution. The
wife was employed as a secretary whose wages were the family's main
source of income at the time of the dissolution.
The wife wanted a quick divorce, and the husband agreed to her
handling the divorce procedure. The husband was not represented
by counsel. The wife's attorney drafted the appropriate documents,
including the property settlement agreement. According to their
agreement, the wife transferred her interest in the couple's real
property, a five-acre tract with a mobile home, to her husband.
The agreement stated that the wife was not required to pay the
husband child support for her son and the couple's daughter who
were in the husband's custody. Although not stated in the written
property settlement agreement, the husband testified that he agreed
to take the wife's interest in the house in lieu of child support.
The wife denied that they had any such understanding. A quit claim
deed for the real property was executed to the husband before the
dissolution hearing held on May 7, 1984.
At the hearing the District Court rejected the property
settlement agreement as unconscionable because the wife received
no interest in the real property. The husband and wife then signed
an amended property settlement and child custody agreement which
merged with the dissolution decree of June 21, 1984.
The amended agreement set the value of the real property,
which had a $21,078 mortgage, at $110,000 and provided that the
husband should reside there until the youngest child graduated from
high school. The husband promised to pay the mortgage payment and
property taxes while he lived there and agreed to destroy the quit
claim deed executed to him. After the youngest child reached her
majority, the property was to be sold, and the wife was to receive
$44,461 less one-half of the closing costs as her share. The
provision that the wife was not required to pay child support was
retained in the amended agreement.
Although the amended property settlement agreement provided
for it, an appraisal of the property's value was not made at that
time. The husband testified that the figure was set by his wife.
The couple had bought the property in 1974 for $32,000. In the
present action, the property was appraised for values ranging from
$30,000 to $37,000. The husband claimed the 1984 value was less
than the present value. The District Court determined that the
1984 value of the real property was $42,550.
The husband testified that he had signed the amended property
.
agreement with the understanding that it was not the true
agreement, but a formality to satisfy the court. The husband
stated that the original agreement exchanging the wife's share of
the real property for her child support obligation, was still in
force. In carrying out the agreement, the wife executed,
notarized, and delivered a second quit claim deed to her husband
on November 26, 1984, five months after the dissolution decree was
granted. The wife testified that she thought it best that the
husband and children have the home, which was also the husband's
place of business.
The youngest child reached the age of majority in 1988, and
the wife brought this action to enforce the amended property
settlement agreement set forth in the dissolution decree and to
enjoin the husband from interfering with the sale of the property
and distribution of the proceeds.
Did the District Court err in modifying the property
settlement and child support agreement?
The wife argues that the District Court had no authority to
modify the property settlement agreement incorporated into the
dissolution decree and that reopening the judgment was barred by
the doctrine of res judicata. The husband contends that the
agreement had been effectively modified when the wife executed and
delivered the quit claim deed to him.
~ i r s t , consider the modification of the property settlement
we
agreement, governed for by 5 40-4-208, MCA, which provides:
(3) The provisions as to property
disposition may not be revoked or modified by
a court, except:
(a) upon written consent of the parties; or
(b) if the court finds the existence of
conditions that justify the reopening of a
judgment under the laws of this state.
Section 40-4-208 (3), MCA.
The ffconditionsthat justify the reopening of a judgmentff
include the grounds listed in Rule 60(b), M.R. Civ.P. : mistake,
inadvertence, surprise, excusable neglect, newly discovered
evidence, fraud, misrepresentation, misconduct, or Ifany other
reason justifying relief." In re the Marriage of Gerleman (1987),
228 Mont. 158, 160, 741 P.2d 426, 427; In re the Marriage of Lorge
(1984), 207 Mont. 423, 430, 675 P.2d 115, 118 (citing Hadford v.
Hadford (Mont. 1981), 633 P.2d 1181, 1187, 38 St.Rep. 1308, 1316
(Sheehy, J., dissenting)). A property settlement agreement is also
subject to modification under the laws governing all contracts.
In re the Marriage of Richardson (1985), 214 Mont. 353, 356, 693
The District Court found that the parties had ffcircumvented
the authorityff the ~istrictCourt and "made their own agreement
of
aside from the property settlement agreement that was approved by
the court.f1 The husband and wife had signed the amended property
settlement agreement, but apparently had orally agreed to retain
the original property settlement agreement. Pursuant to this
agreement, the wife deeded her interest in the couplefs real
property to her husband in lieu of child support. The wife then
brought this action attempting to enforce the amended property
settlement agreement which required that the property be sold and
that the wife receive $44,000 as her share. The present value of
the property is $37,000. Nothing was provided to the husband for
child support or for the mortgage payments and property taxes he
had paid.
The situation is akin to that in State, ex rel. Blakeslee v.
Horton (1986), 222 Mont. 351, 722 P.2d 1148. In that case,
subsequent to the divorce, the parties made an agreement regarding
child support payments, and fourteen years later the wife tried to
enforce the child support terms of the dissolution decree. We
adopted the finding of Judge Luedke: I1'Equity cannot allow the
mother to participate in nullification of the purpose of the law
in fact, and at the same time, allow her to claim the benefit of
it in theory. ... !If Blakeslee, 222 Mont. at 355, 722 P.2d at
1150 (emphasis omitted).
The principle here is the same. To allow the wife to enforce
the amended property settlement agreement, as written, would be
unjust. Not only would the wife receive the entire proceeds from
the property, she would evade her legal and moral obligation of
child support. Section 40-4-204(1), MCA; State Dept. of Revenue
v. Hubbard (1986), 222 Mont. 156, 159, 720 P.2d 1177, 1179.
Moreover, the wife would be unjustly enriched by the mortgage
payments, taxes and maintenance costs which the husband paid during
the years he occupied the property. These conditions justify the
reopening of the judgment pursuant to 5 40-4-208(3)(b), MCA.
We note that child support is not ordinarily granted
retroactively. Section 40-4-208(1), MCA. If child support has
never been determined, it cannot be modified; and the statutory
provision prohibiting retroactive modification, B 40-4-208(1), MCA,
does not control. Hubbard, 222 Mont. at 161, 720 P.2d at 1180.
In Hubbard, as here, the district court was correct in ordering
collection of child support back to the date of the dissolution
decree.
We hold that the District Court had sufficient grounds for
modifying the distribution of the assets after the sale of the real
property to allow the husband what he would have received if he had
been paid child support payments rather than his wife's share of
the real property.
Secondly, we address the husband's argument that the quit
claim deed executed and delivered to him five months after the
entry of the dissolution order validly modified the property
settlement agreement. The Property Settlement and Child Custody
Agreement prohibited modification ''except by judcial [sic] order
or by mutual consent and agreement of the parties, expressed in
writing. The husband contends that the quit claim deed
constituted written llmutual
consent and agreement of the parties,"
and was therefore a valid modification of the agreement giving him
the wife's interest in the real property. The wife claims that the
transfer was void for lack'of consideration.
We need not decide this issue since we have affirmed the
District Court's decision that their subsequent agreement, whether
oral or written, circumvented the authority of the court and was
invalid.
I1
Did the District Court abuse its discretion in valuation of
the marital real property?
The current market value of the property was appraised at
$30,000. Using a cost approach analysis, based on replacement
cost, the property was valued at $37,000. The court chose the
latter figure and then added 15% based on the change in property
values to arrive at an approximation of the 1984 value of the real
property of $42,550. The husband claims that the court should have
used the $30,000 figure and should have decreased the amount by 12-
15%, rather than increased it.
Generally, the District Court is vested with broad discretion
in performance of its duty to achieve an equitable property
distribution and can adopt any reasonable valuation so long as it
is supported by the record. In re the Marriage of Johns (1989),
238 Mont. 256, 258, 776 P.2d 839, 840; In re the Marriage of Luisi
(1988), 232 Mont. 243, 247, 756 P.2d 456, 459. No abuse of
discretion occurred in using the $37,000 valuation.
In determining the 1984 valuation of the real property, the
District Court used the appraisal by Gary France. The letter
written by Mr. France stated that appraising the 1984 value of
property was llsomewhatspeculative and unverifiable1'and that in
his opinion property had appreciated to a high in the ''early
1980 'sl'after which it declined to present levels. Mr. France also
stated that a "loss of 12% to 15% was not uncornm~n,~~ did not
but
make it clear to what time frame he was referring. The District
Court interpreted the statement to mean that property values had
decreased 12 to 15% from 1984 to the present. However, the
appraiser went on to state that the 1984 value of the real property
in question was comparable to its 1974 value ($32,000). In the
appraiser's opinion, the decline had already taken place by 1984.
Thus, the courtmisinterpretedthe appraiser's admittedly confusing
analysis of 1984 property values, and this portion of the opinion
is remanded to the ~istrictCourt for further consideration.
Did the District Court err in issuing an order nunc pro tunc
after the husband filed the Notice of Appeal?
After the Notice of Appeal was filed, the District Court
issued an order nunc pro tunc to correct errors in mathematical
calculations made in determining the wife's share of the proceeds
from sale of real property. The District Court has inherent power
to correct clerical errors in its own judgments in order to ensure
that the record I1speaks the truth1' and reflects what the court
actually decided. State v. Owens (1988), 230 Mont. 135, 138, 748
P.2d 473, 474. Whenever a clerical mistake occurs in a judgment,
order, or other part of a court record, and the error is admitted
by the parties or can be rectified without inequity or prejudice
to another party, the district court can correct the error at any
time, either nunc pro tunc or by an order pursuant to Rule 60(a),
M.R.Civ.P. Winn v. Winn (1982), 200 Mont. 402, 412, 651 P.2d 51,
56. Such an order cannot be used to correct judicial errors. In
re Marriage of Cannon (1985), 215 Mont. 272, 274, 697 P.2d 901,
902.
Here the court made mathematical errors in its calculations
of the wife's share of the proceeds from the sale of real property.
Although the wife's portion was reduced from $5,978.06 to
$2,008.06, the error was purely clerical and made the record ''speak
the truth.
The wife argues that the District Court's order was invalid
because it no longer had jurisdiction over the matter once the
Notice of Appeal was filed. Once a proper appeal is taken,
jurisdiction of the cause passes from the District Court to the
Supreme Court. However, the District Court retains the power to
correct clerical errors even after the appeal is initiated. Powers
Mfg. Co. v. Leon Jacobs Enterprises (1985), 216 Mont. 407, 411-
12, 701 P.2d 1377, 1380; Northern plains Resource council v. Board
of Health & ~nvironmentalSciences (1979), 184 Mont. 466, 472, 603
P.2d 684, 688. We hold that the District Court did not err in
issuing the order nunc pro tunc after the Notice of Appeal had been
filed.
IV
Did the District Court abuse its discretion in refusing to
award attorney's fees to the husband?
The general rule is that the prevailing party is not entitled
to attorney's fees absent a specific contract provision or
statutory grant. Cannon, 215 Mont. at 276, 697 P.2d at 903. The
Property Settlement and child Custody Agreement incorporated into
the dissolution decree provides that in any action to interpret or
modify the agreement, the court I'may award reasonable attorneys
fees and Court costs as provided by law." By statute, the court
"after considering the financial resources of both parties, may
order a party to pay a reasonable amount for the cost to the other
party of maintaining or defending any proceeding under chapters 1
and 4 of this title and for attorney's fees. . . . Section 40-
4-110, MCA (emphasis added). Since under the express contractual
agreement and the statute, the awarding of attorney's fees is
permissive, the appropriate standard of review is whether the court
abused its discretion. In re the Marriage of Smith (Mont. 1990),
791 P.2d 1373, 1378, 47 St.Rep. 925, 931; In re the ~arriageof
Anderson (1988), 230 Mont. 89, 95, 748 P.2d 469, 472.
The husband claims that the court should have awarded him
attorneyg fees because the wife in bringing this action forced him
s
to retain counsel and sustain substantial costs. The statute
requires the court to consider "the financial resources of both
parties,Igbut does not mandate consideration of any other factors.
Section 40-4-110, MCA.
In this case, the record indicates that the court thoroughly
analyzed the financial resources of each party. We find no abuse
of discretion by the District Court in denying the husband
attorney's fees.
We affirm this decision in part and remand for further
consideration the District Court's valuation of the marital
property consistent with this opinion.
A
We concur: