No. 93-307
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
EDWARD L. SMITH,
Petitioner and Appellant,
and
SHARON B. SMITH,
Respondent and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Ted 0. Lympus, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
E. Eugene Atherton, Kalispell, Montana
For Respondent:
Paul A. Sandrv. Warden. Christiansen. Johnson
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3x Submitted on Briefs: September 23, 1993
Decided: October 21, 1993
Fl.
i@ A:< OF SUPREWE COURI
STATE OF MONTANA
.
4
' /'Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Edward L. Smith, petitioner, appeals from an order entered by
the Eleventh Judicial District Court, Flathead County, requiring
him to pay maintenance to his former spouse, Sharon B. Smith. We
affirm the District Court's order.
The issue presented is whether the District Court erred in
modifying the parties' dissolution decree to include a maintenance
provision, when the original decree was silent as to maintenance,
and one spouse moved the court for modification of the decree.
Edward L. Smith (Edward) and Sharon B. Smith (Sharon) married
on June 12, 1960, at Livingston, Park County, Montana. Four
children were born during the marriage, all of whom were emancipat-
ed at the time of the dissolution. Edward, disabled, received
workers' compensation monies from the State of Alaska during part
of the marriage. Edward negotiated a settlement with the State of
Alaska, which resulted in his entitlement to a lump sum of $75,000,
to be paid in the Fall of 1991.
After approximately thirty years of marriage, Edward filed for
dissolution on October 29, 1990. The parties entered into a
marital settlement agreement prior to the dissolution hearing,
which agreement in part provided:
The parties hereto are possessed of certain real property
and personal property which has been previously equitably
divided between them.
The agreement was silent as to maintenance. The agreement did,
however, state that:
Husband agrees to and shall pay the sum of $16,988.62
immediately upon the receipt of his Workers' Compensation
settlement [benefits] [to wife].
As security, Edward signed a promissory note, promising to pay
Sharon $16,988.62. In return for this note, the marital settlement
agreement and a release, Sharon consented to entry of a decree of
dissolution of the marriage. The court incorporated the marital
settlement agreement into the parties' decree of dissolution and
entered the decree on January 18, 1991.
Edward received the workers' compensation settlement proceeds
during 1991; he did not pay Sharon any amount toward the debt he
owed her. On April 1, 1992, he filed for bankruptcy under Chapter
7 with the United States Bankruptcy Court for the District of
Montana. The Bankruptcy Court subsequently discharged Edward's
debts, including the debt owed to Sharon.
On October 15, 1992, Sharon moved the District Court for an
award of maintenance. Among other things, she showed the court
that she was unable to meet her living expenses. Edward in return
moved the court to dismiss Sharon's motion on the grounds that it
was barred by the doctrine of res iudicata. The court denied
Edward's motion and subsequently ordered him to pay Sharon mainte-
nance of $356.86 per month for six years. The court did this by
inserting the following maintenance provision:
Husband shall pay to Wife as maintenance payments the sum
of $356.86 per month for a period of six years commencing
on the 15th day of January, 1993 and ending on the 15th
day of December, 1998. Interest at the rate of 10% per
annum shall accrue on all delinquent payments.
The court further provided that "the obligation to pay future
maintenance shall not be terminated upon the death of Edward
. .. .It Edward appeals from the court's order.
Did the District Court err in modifying the parties' dissolu-
tion decree to include a maintenance provision?
We review discretionary trial court rulings, such as an award
of maintenance upon dissolution, under the abuse of discretion
standard. See In Re Marriage of Danelson (1992), 253 Mont. 310,
317, 833 P.2d 215, 218. Additionally, we review a district court's
findings of fact for clear error, and its conclusions of law to
determine whether those conclusions are correct. Danelson, 833
P.2d at 219; Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470,
474-75, 803 P.2d 601, 603-04.
Edward contends that the court modified the parties' dissolu-
tion decree without jurisdiction because g 40-4-203, MCA, is the
exclusive grant of jurisdiction for awarding maintenance, and that
the court's modification did not comport with that statute. Sharon
argues that 5 40-4-208, MCA, gives a court jurisdiction to modify
a dissolution decree and award maintenance up to two years after
the entry of the dissolution decree, when the decree is silent as
to maintenance. We agree with Sharon.
Generally, Montana law prefers property dispositions over
maintenance in dissolution matters. In Re Marriage of Luisi
(1988), 222 Mont. 243, 756 P.2d 456. Whether to award maintenance
is a decision within the sound discretion of the court. See 5 40-
4-203, MCA.
In most cases, a final adjudication bars subsequent actions as
res judicata. After a dissolution decree is entered, however,
5 40-4-208, MCA, provides exceptions to the general rule. In Re
Marriage of Ensign (1988), 227 Mont. 357, 739 P.2d 479.
A petition for modification with respect to maintenance
& be considered by the District Court if it is filed
within two years of the date the decree was rendered,
regardless of whether the decree contains provisions for
maintenance .. . . [Emphasis supplied.]
In Re Marriage of Cooper (l985), 216 Mont. 34, 37, 699 P.2d 1044,
1046; see also In Re Marriage of Jones (1990), 242 Mont. 119, 788
Sharon filed the motion for modification within the statutory
time limit of two years. See 5 40-4-208(2)(a), MCA. The District
Court then opened the property distribution portion of the
dissolution decree after Sharon showed good cause for modification.
See 5 40-4-208 (3) (b), MCA. After considering the evidence, the
court amended the dissolution decree to include an award of
maintenance. We hold that because the original agreement was
silent as to maintenance, the court had jurisdictional authority
for this modification under 5 40-4-208(2)(a), MCA.
We conclude that the court did not abuse its discretion in
fashioning an equitable ruling made within the bounds of its
statutory jurisdiction. The order of the District Court is
therefore affirmed.
hief Justice
We concur:
October 21, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named :
E. Eugene Atheron, P.C.
Attorney at Law
735 Main St,
Kalispell, MT 59901
Paul A. Sandry, Esq.
Warden, Christiansen, Johnson & Berg
P.O.Box 3038
Kalispell, MT 59903-3038
ED SMITH
CLERK OF THE SUPREME COURT
BY:
Depu
y
STATE OF MONTANA