August 11 2011
DA 11-0071
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 192
IN RE THE MARRIAGE OF
HOLLY H. WOLF,
Petitioner and Appellee,
and
WALTER WOLF,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DR-01-142
Honorable Mike Salvagni, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Leanne M. Schraudner, Schraudner & Hillier, PLLC, Bozeman, Montana
For Appellee:
Jason Armstrong, Attorney at Law, Bozeman, Montana
M. Cris Armenta, The Armenta Law Firm, APC, Los Angeles, California
Submitted on Briefs: July 13, 2011
Decided: August 11, 2011
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Walter E. Wolf (Walter) appeals a series of interlocutory orders of the Eighteenth
Judicial District Court, Gallatin County, concluding that the Dissolution Agreement
executed by Walter and his ex-wife, Holly H. Wolf (Holly), unambiguously obligated
Walter to continue paying Holly maintenance despite her remarriage in August 2008. On
February 16, 2011, pursuant to M. R. App. P. 4(4)(b), we accepted the District Court’s
Order granting M. R. Civ. P. 54(b) certification of these interlocutory orders. We now
reverse.
ISSUE
¶2 A restatement of the dispositive issue on appeal is whether the District Court erred
in concluding that § 40-4-208(4), MCA, was inapplicable in determining Walter’s
maintenance obligations under the Dissolution Agreement upon Holly’s remarriage.
Because this issue is dispositive, we need not reach Walter’s other issues raised in the
alternative.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 The relevant facts are undisputed. Holly and Walter married in December 1987,
and divorced in 2002. On February 11, 2002, Holly and Walter executed a Dissolution
Agreement which was incorporated into the February 12, 2002 dissolution decree.
Pertinent to this appeal, Walter agreed to pay Holly spousal maintenance according to the
following provisions of the Dissolution Agreement:
Walt shall pay to Holly as and for her support and maintenance the sum of
$4,000.00 per month, commencing February 1, 2002, and continuing
monthly thereafter until [their son] graduates from high school or reaches
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the age of 18, whichever is last to occur. Upon [their son’s] graduation
from high school or reaching the age of 18, whichever is last to occur, Walt
shall begin paying Holly $6,000.00 per month as maintenance until Holly’s
death. The monthly support shall be payable on the 1st day of each month
by direct deposit. Walt’s obligation for support under this paragraph shall
terminate upon the death of Holly. In the event Holly shares a residence
with an individual with whom she is having an intimate relationship for
over a six-month period, the maintenance shall be reduced by $2,00[0].00.
However, if such relationship shall cease, then six (6) months after such
cessation, the amount of maintenance will be reinstated to $6,000.00 per
month. Should Walt pre-decease Holly, Walt’s obligation to Holly under
this paragraph is secured by Walt’s obligation under the life insurance
paragraphs as stated in ¶ 8 [of this Dissolution Agreement].
* * *
It is the intention of the parties that all amounts payable as
maintenance to Holly under the aforementioned paragraph shall constitute
alimony payments which are imposed upon and incurred by Walt under a
written instrument within the meaning of § 71 of the Internal Revenue
Code . . . . The parties agree that the support payments to Holly required
under this paragraph shall not be modifiable. It is the specific intent and
agreement of the parties that maintenance be contractual and non-
modifiable, and that the Court shall not have jurisdiction to modify the
terms and conditions as set forth.
¶4 In July 2008, Holly began cohabiting with Joseph Loftis (Joseph). On August 17,
2008, Holly and Joseph married. Walter discontinued making maintenance payments to
Holly in September 2008. Holly did not initially contest Walter’s termination of
maintenance payments, but did so after she filed to invalidate her marriage to Joseph.
¶5 In March 2009, Holly told Walter that she and Joseph were divorcing. On April
16, 2009, Holly filed a Verified Petition for Declaration of Invalidity of Marriage,
arguing that she was induced to marry Joseph. Walter sought to intervene in the action
on the basis that a retroactive decree of invalidity could affect his obligation to make
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maintenance payments to Holly, but his motion was denied by the District Court, a ruling
we affirmed. In re Marriage of Loftis, 2010 MT 49, 355 Mont. 316, 227 P.3d 1030.
¶6 In the meantime, Holly and Joseph entered into a settlement agreement providing
for, among other things, the distribution of property and debt. In the agreement, Holly
and Joseph stipulated that they each claimed the other party improperly induced the other
to marry. On July 9, 2009, the District Court entered an order declaring the marriage
between Holly and Joseph invalid “effective as of the date of the parties’ marriage.”
¶7 In October 2009, Holly filed a motion for partial summary judgment asserting that
Walter’s maintenance obligation was reinstated after Holly and Joseph stopped living
together and arguing Walter was in arrears as of September 2008, when he stopped
making maintenance payments. Following extensive litigation, including several motions
regarding discovery unrelated to this issue, the District Court ruled on Holly’s motion for
partial summary judgment on March 22, 2010. The court concluded that § 40-4-208(4),
MCA, was inapplicable, and that, under the Dissolution Agreement, Holly’s marital
status did not affect Walter’s obligation to make maintenance payments. Subsequently,
on July 9, 2010, the District Court determined that no genuine issues of material fact
remained as to spousal maintenance, and concluded that Walter owed Holly for past,
present, and future maintenance payments in an amount certain. Walter timely appeals.
STANDARD OF REVIEW
¶8 We review de novo a district court’s ruling on summary judgment, applying the
same M. R. Civ. P. 56(c) criteria as does a district court. In re Estate of Harmon, 2011
MT 84, ¶ 14, 360 Mont. 150, 253 P.3d 821. The moving party has the initial burden of
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establishing the absence of a genuine issue of material fact and entitlement to judgment
as a matter of law. Harmon, ¶ 14. Whether the movant is entitled to judgment as a
matter of law is a legal conclusion that we review for correctness. Peterson v. Eichhorn,
2008 MT 250, ¶ 13, 344 Mont. 540, 189 P.3d 615.
DISCUSSION
¶9 Did the District Court err in concluding that § 40-4-208(4), MCA, was
inapplicable in determining Walter’s maintenance obligations under the
Dissolution Agreement?
¶10 At issue is the interpretation of § 40-4-208(4), MCA, and whether it applies to the
Dissolution Agreement executed by Holly and Walter on February 11, 2002. Section
40-4-208(4), MCA, states that “[u]nless otherwise agreed in writing or expressly
provided in the decree, the obligation to pay future maintenance is terminated upon the
death of either party or the remarriage of the party receiving maintenance.”
¶11 When interpreting a statute, we first look to the plain meaning of its words.
Hendershott v. Westphal, 2011 MT 73, ¶ 20, 360 Mont. 66, 253 P.3d 806 (citing In re
Marriage of Christian, 1999 MT 189, ¶ 12, 295 Mont. 352, 983 P.2d 966). “Where the
language of a statute is clear and unambiguous, the statute speaks for itself and we will
not resort to other means of interpretation.” Signal Perfection, Ltd. v. Rocky Mt. Bank-
Billings, 2009 MT 365, ¶ 16, 353 Mont. 237, 224 P.3d 604 (quoting Hilands Golf Club v.
Ashmore, 2002 MT 8, ¶ 20, 308 Mont. 111, 39 P.3d 697). It is not this Court’s role to
insert what has been omitted or omit what has been inserted. Section 1-2-101, MCA.
¶12 On appeal, Walter argues that the plain meaning of § 40-4-208(4), MCA, is
unambiguous and, therefore, his obligation to pay maintenance payments to Holly
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terminated when she married Joseph in August 2008. His argument is premised on the
fact that the Dissolution Agreement did not expressly provide that Walter would make
continuous maintenance payments even if Holly remarried. Holly counters that the
maintenance payments terminate only upon her death because the conjunctive “or” in
§ 40-4-208(4), MCA, allows the parties to choose which event—death of a party or
remarriage of a party—terminates maintenance payments. Holly’s interpretation is
inconsistent with the canons of statutory interpretation and unsupported in our precedent.
¶13 The plain language of § 40-4-208(4), MCA, is unambiguous. Absent an express
written agreement to the contrary, a party’s maintenance obligations automatically
terminate if (1) either party dies or (2) the party receiving the maintenance payments
remarries. Because the word “or” connotes a disjunctive, only one of the separately
stated factors must exist to terminate the maintenance obligations. See Doe v. Cmty.
Med. Ctr., Inc., 2009 MT 395, ¶ 35, 353 Mont. 378, 221 P.3d 651. Thus, should parties
wish to contract around this statute, they must so state “in writing or expressly provide in
the decree” for either or both of these separately stated factors—death of a party and
remarriage of the party receiving maintenance payments.
¶14 Here, the Dissolution Agreement expressly addresses only the first of the two
separate events set forth in § 40-4-208(4), MCA. In the case of death, the Agreement
limits termination of maintenance payments to Holly’s death; if Walter predeceases
Holly, her maintenance payments continue to be paid through a life insurance policy
described in the Dissolution Agreement. This is not disputed. However, the subject of
this appeal is whether the express terms of the Dissolution Agreement address the second
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event set forth in § 40-4-208(4), MCA, the remarriage of the recipient of the maintenance
payments. We conclude it does not, and, as explained in detail below, we therefore hold
that Holly’s marriage to Joseph in August 2008 automatically terminated Walter’s
maintenance obligations.
¶15 Construction and interpretation of settlement agreements, including dissolution
agreements, is a question of law. In re Szafryk, 2010 MT 90, ¶ 23, 356 Mont. 141, 232
P.3d 361. The District Court concluded that § 40-4-208(4), MCA, is inapplicable
because the Dissolution Agreement contained a non-modification clause. However, we
have long held that laws existing at the time of the formation of a contract become part of
that contract. See State ex rel. Bullock v. Philip Morris, Inc., 2009 MT 261, ¶ 16, 352
Mont. 30, 217 P.3d 475 (citing Earls v. Chase Bank of Texas, N.A., 2002 MT 249, ¶ 12,
312 Mont. 147, 59 P.3d 364 (“We first articulated this principle in Snider v. Yarbough, 43
Mont. 203, 207, 115 P. 411, 413 (1911), stating that ‘parties will be presumed to have
contracted with reference to the law in force.’ ”)); Wiard v. Liberty Northwest Ins. Corp.,
2003 MT 295, ¶ 20, 318 Mont. 132, 79 P.3d 281. Moreover, we previously addressed
this precise issue in In re the Marriage of Cortese, 2008 MT 28, 341 Mont. 287, 176 P.3d
1064 wherein we held that despite a non-modification provision in a dissolution
agreement, “[f]or maintenance to continue after the receiving party remarries, a written
separation agreement or a court decree must include an express provision that
maintenance will not terminate on remarriage of the party receiving maintenance.”
Cortese, ¶ 12.
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¶16 Section 40-4-208(4), MCA, existed in its current form when the Dissolution
Agreement was formed and, therefore, was implicitly incorporated into the Dissolution
Agreement. The Dissolution Agreement does not expressly provide that maintenance
payments would continue in the event Holly remarried. By the plain language of
§ 40-4-208(4), MCA, Walter’s maintenance obligation to Holly terminated by operation
of law upon Holly’s marriage to Joseph. The District Court erred in concluding
otherwise.
¶17 Finally, Walter challenges Holly’s contention that the cohabitation provision in the
Dissolution Agreement encompassed remarriage, and therefore, the Dissolution
Agreement did expressly address remarriage. We disagree with Holly. Cohabitation is
not synonymous with marriage. The two situations are treated differently under Montana
law, and specifically with regard to spousal maintenance payments. See In re Marriage
of Bross, 256 Mont. 174, 180, 845 P.2d 728, 731 (1993) (“cohabitation is not subject to
§ 40-4-208(4), MCA, which provides for the automatic termination of maintenance upon
the remarriage of the recipient spouse.” (Emphasis added.)); see also In re Marriage of
Brown, 283 Mont. 269, 275, 940 P.2d 122, 125-26 (1997) (cohabitation alone is not a
substantial change in circumstances making a spousal maintenance award
unconscionable). It is undisputed that Holly remarried in August 2008. And, while the
Dissolution Agreement does address cohabitation, it does not expressly address
remarriage. Therefore, § 40-4-208(4), MCA, applies.
¶18 Finally, although it is undisputed that Joseph and Holly’s marriage was ultimately
declared invalid, the legal consequence of that declaration as it relates to Walter’s
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maintenance obligations was not raised by either party in District Court or this Court.
We therefore do not reach this issue, nor is our Opinion intended to resolve it in any
fashion.
CONCLUSION
¶19 For the foregoing reasons, we hold that the District Court erred in concluding that
§ 40-4-208(4), MCA, was inapplicable to the Dissolution Agreement executed by Walter
and Holly in February 2002. Therefore, we conclude that Holly’s marriage to Joseph in
August 2008 terminated Walter’s maintenance obligation to Holly pursuant to the plain
language of § 40-4-208(4), MCA. Our determination here reverses the District Court’s
March 22, 2010 order and vacates all related orders regarding spousal maintenance only
to the extent they are inconsistent with this Opinion.
¶20 Reversed and remanded.
/S/ PATRICIA COTTER
We concur:
/S/ JAMES C. NELSON
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JIM RICE
Chief Justice Mike McGrath, dissenting.
¶21 I dissent from the majority’s disposition of this case.
¶22 The majority holds that the pivotal issue in this case is whether § 40-4-208(4),
MCA, applies. Opinion, ¶¶ 2, 16. The majority concludes that the statute applies and
that Holly’s marriage to Loftis terminated Walter’s obligation to pay maintenance to her.
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¶23 However, § 40-1-402(5), MCA, provides that a declaration of marriage invalidity
may be retroactive to the date of the marriage. I conclude, because the marriage to Loftis
was invalidated and specifically made retroactive to the date of the marriage, § 40-4-208,
MCA, does not direct the outcome of this case.1
¶24 When a marriage is declared invalid, “in the eyes of the law the marriage is
deemed as having never occurred, regardless of whether the decree of invalidity is
declared retroactive or nonretroactive.” In re Marriage of Williams, 208 Mont. 252, 255,
677 P.2d 585, 586 (1984). But § 40-1-402(5), MCA, does “have an effect on the rights of
the parties to the recent marriage and other third persons, depending on whether the
decree of invalidity is declared nonretroactive or retroactive.” Marriage of Williams, 208
Mont. at 255, 677 P.2d at 586.
¶25 In Marriage of Williams this Court considered the effect of § 40-1-402(5), MCA,
on the prior maintenance obligation of a divorced spouse. This Court adopted a rule
announced by the Utah Supreme Court in Ferguson v. Ferguson, 564 P.2d 1380 (Utah
1977), that whether a decree of invalidity of the second marriage reinstates a prior
obligation of maintenance is a matter left to the sound discretion of the district court,
based upon the equity of the situation. Marriage of Williams, 208 Mont. at 256, 677 P.2d
at 587.
1
As noted by the majority, the parties, inexplicably, have failed to discuss the impact of the
declaration of invalidity and the application of § 40-1-402(5), MCA. Because of the clear impact
of these provisions of Montana law to the undisputed facts of this case, I would address this
issue.
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¶26 I would construe and apply these authorities to hold that § 40-4-208(4), MCA, did
not automatically terminate Walter’s obligation to pay maintenance to Holly, and that
further proceedings before the District Court are required to make a determination under
Marriage of Williams as to whether equity requires a continuation or a discontinuation of
Walter’s maintenance obligation.
¶27 I would remand to the District Court for further proceedings in light of § 40-1-
402(5), MCA, and Marriage of Williams.
/S/ MIKE McGRATH
Justice Brian Morris joins in the foregoing dissenting Opinion of Chief Justice McGrath.
/S/ BRIAN MORRIS
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