dissenting.
I must respectfully dissent. I believe the majority opinion is based upon the faulty premise that the cheek sent by John and negotiated by Joan was in payment and satisfaction of the 1988 accord.
However, the record in this case shows that the magistrate found that Joan had elected to proceed under the original 1981 divorce decree. The majority opinion does not hold that the magistrate’s finding is unsupported by the evidence submitted. The magistrate’s finding, therefore, should not be overturned unless held to be clearly erroneous.
As stated by the magistrate:
Furthermore, [John] has offered no evidence or suggested calculations that would allow this court to conclude that he had fully paid under the terms of the [1988] accord by June of 1993. He simply wants the court to forgive his failure since it appeared [Joan] did, at least for a while. Therefore, the accord failed and the obligations of the parties reverted back to the decree of divorce as amended.
The accord and satisfaction that occurred in September of 1993 ... dealt with all disputed amounts up to and including that date. However, that accord did not affect new obligations or new judgments occurring thereafter. As each alimony payment becomes due, it creates a new judgment in favor of [Joan]. The accord and satisfaction having occurred in September of 1993, [John] was obligated to provide alimony in an amount as calculated under paragraph 5) of the Decree of Divorce, at pages 3, h, and 5 for October 1993, and each month thereafter. Therefore, [John] is entitled to a partial satisfaction of a judgment with respect to all amounts due up to and including September of 1993, but is still obligated for all amounts accruing thereafter.
(Emphasis added).
As further explained in the district court’s opinion:
That is the problem in this case. The magistrate had to find out what “claim” was meant by [John] to be satisfied by September 1993 payment of $750. Pursuant to the statute, I.C. § 28-3-310(2), the burden of making sure the claim to be defined “conspicuously” is on the claimant [John] in this ease.
Herein lies the entire ease of [John]. He actually asserts a new accord having breached the November, 1988 accord. He wants [Joan], by the acceptance of approximately $19 in new consideration, to satisfy another accord as offered in the check of September, 1993. However, the issue of the intent of the parties is a contractual issue which is a finding of fact by the trial court. In this case, the trial court found that there was an accord reached by law of I.C. § 28-3-310, however, the terms were as of the date of the negotiation of the check and did not affect the underlying obligation of the parties.
[Joan] had previously said she was going back to the original judgment in her telephone conversation and then showed her intent once again by obliterating the limited endorsement that [John] inserted to try to resurrect the November 1988 accord, or in offering the check, a new contract for yet another accord to end the 1981 judgment.
The magistrate made the factual finding it was not the intent of [Joan] to enter into another accord or to resurrect the November 1988 accord. However, following I.C. § 28-3-310, the magistrate found correctly that as a matter of law, the cashing of the specially endorsed check settled all accounts on the original 1981 judgment, which were due to date. It did not settle the dispute based upon the 1988 accord or a newly offered accord because that was never the intent of [Joan],
The question to be settled by the magistrate was one of the intent of the parties as concerns the September, 1993 check. *512[John’s] intent and hope was to reinstate the November, 1988 accord, or to propose a new accord supported by new consideration to completely extinguish the 1981 judgment. [Joan’s] intent was to proceed under the 1981 judgment once the 1988 accord was materially breached by [John], The magistrate settled the question of fact in favor of [Joan], The court in its opinion found that she never intended to proceed under the November 1988 accord or to enter into a new accord, but rather to proceed under the 1981 judgment and to enforce her rights pursuant to that judgment for accrued alimony.
The magistrate then correctly followed I.C. § 28-3-310 to compromise all preexisting payments due under the 1988 judgment, however, the judgment was left intact consistent with the factual finding of [Joan’s] intent following the breach of the November 1988 accord.
(Emphasis added).
Therefore, this Court is bound by the factual findings of the magistrate unless it holds that said findings are unsupported by the evidence at trial and, thus, clearly erroneous. Without further addressing those findings, however, the majority apparently proceeds on its own findings of fact by stating:
John argues that the magistrate erred in concluding that Joan’s negotiation of the “paid-in-full” check did not satisfy alimony obligations accruing after September 1993. He contends that Joan’s negotiation of the check effected satisfaction of the 1988 accord and discharged the underlying obligation. Therefore, he asserts, he does not owe any amount to Joan.
John argues that the payment of $750 was not made under the terms of the divorce decree but under the terms of the 1988 agreement, which he contends was an executory accord. He asserts that once he breached the 1988 accord by failing to complete all payments by June 27, 1993, Joan had two options: either to enforce the “original obligations,” i.e., the divorce decree, or to enforce the “compromise agreement,” i.e., the 1988 accord. He argues that by negotiating the check which John offered as payment under the 1988 executory accord, Joan elected to enforce the 1988 compromise agreement. We agree. . . .
... Here, there is no evidence that Joan informed John prior to receiving the check that she would not accept payment in full of the 1988 accord or that the divorce decree was controlling. She simply sent him to the ledger in response to his inquiries as to what amount was due under the 1988 accord. Therefore, even assuming that John realized the payment deadline had passed, he reasonably believed that Joan might elect to enforce the 1988 accord rather than choosing to enforce the divorce decree and he, in good faith, tendered a check for payment in full under the 1988 accord. . . .
... Joan knew that the check was tendered only on the express condition that it be accepted in full satisfaction of Joan’s claim under the 1988 accord.
(Citation omitted, emphasis added).
Therefore, under our standard of review, I am constrained to affirm the magistrate’s findings and conclusions that Joan elected to enforce the 1981 decree, not the 1988 accord wherein Joan compromised all past, present and future alimony for a lump sum of $10,-000. Accordingly, the tendered and negotiated check satisfied all payments due up to and including that date, October 1993. It did not, however, extinguish future alimony payments, and the judgments to be entered thereon, which had not yet come due pursuant to the divorce decree. In spite of the intent of the majority to the contrary, delinquent parties will simply attempt to use this opinion to alleviate themselves of all future alimony payments by writing “paid in full” on any one of their checks. Thus, I dissent and would affirm the reasoning set forth by the magistrate.