NO. 83-183
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
IN RE THE MARRIAGE OF:
ROSE WILLIAMS,
Petitioner and Respondent,
and
DENNIS WILLIAMS,
Respondent and Appellant.
Appeal from: District Court of the Courth Judicial District,
In and for the County of Missoula
Honorable James B. Wheelis, Judge presiding.
Counsel of Record:
For Appellant:
Datsopoulos, &Donald and Lind, Missoula, Montana
Milton Datsopoulos argued and David Cotner araued,
Missoula, Montana
For Respondent:
Terry Wallace argued, Missoula, Montana
submitted : December 5 , 198 3
Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Dennis Williams appeals from an order of the District
Court, Fourth Judicial. District, Missoula County, reinstating
his obligation to pa.y maintenance to his previous wife, Rose
Williams. We reverse the decision of the District Court and
remand the cause to the District Court for further
proceedings.
A final decree dissolving the marriage between Rose
Williams and Dennis Williams was entered on April 21, 1980.
The decreeeincorporated an agreement by which the parties
attempted to make a complete and final settlement of their
property and adjust all of their marital obligations. It
provides in part tha-t Dennis Williams make the house
payments, including taxes and! insurance, on the family home
until the family home was paid for or sold, or unt-il Rose
Williams remarried. The agreement further provided that if
Rose Williams remarried and chose to continue living in the
family home Dennis Wil-liams would no longer be required to
make the house payments.
On July 1.0, 1982, Rose FJilliams remarried. She and her
new husband decided to live in the family home and, pursuant
to the agreement, Dennis Williams stopped making the house
payments.
Two mont.hs later, on September 1, 1982, Rose Williams
filed a petition to invalidate her recent marriage on the
grounds that she lacked the capacity to consent to the
marriage and that any consent to the marriage was induced by
fraud. The petition was granted and a retroactive decree of
invalidity was entered.
On December 8, 1982, Rose Williams filed a petition
asking the District Court to enforce the portion. of the
dissol-ution decree requiring Dennis Williams to make the
house payments. After considering the briefs of counsel, the
District Court issued an order in which the court determined
that "[pletitioner's annulment of her second marriage has
served to revive respondent's obligation for maintenance."
It is from this determination that Dennis Williams appeals.
Contrary to the District Court ' s ,
d-etermination Dennis
Williams contends that his obligation to pay maintenance in
the form of house payments was terminated by Rose Will.iamsl
remarriage and that this obligation was not automaticallv
revived by the retroactive decree of invalidity.
Historically in Montana the annulment of a marriage
rend-ered that marriage void - initio, void as of the date of
ab
the marriage. State ex rel. Wooten v. District Court (1920),
57 Mont. 517, 189 P. 233; In re Takahashi's Estate (1942),
113 Mont. 490, 129 P.2d 217. In 1975, however, the Montana
legislature adopted the Uniform Marriage and Divorce Act
which provided that a decree of invalidity or an annulment
could be declared nonretroactive as well as retroactive in
effect. Section 40-1-402 (5), MCA, provides that. the court
shall declare the marriage invalid as of the date of the
marriage " [u]nless the court finds, after a consideretion of
all relevant circumstances, including the effect of a
retroactive decree on third parties, that the interests of
justice would be served by making the decree nonretroactive."
If a nonretroactive decree of invalidity is issued, the
statute further provides that "[tlhe provisions of chapter 4
[section 40-4-101 to 40-4-225, inc., MCA] relating to
property rights of the spouses, maintenance, support, and
custody of children on dissolution of marriage are
appl-j-cable.. ."
These provisions do not alter the status of the
marriage; in the eyes of the law the marriaqe is deemed as
having never occurred, regardless of whether the decree of
invalidity is declared retroactive or nonretroactive. These
provisions do, however, have an effect on the rights of the
parties to the recent marriage other third persons,
depending on whether the decree of invalidity is declared
nonretroactive or retroactive. For example, if a decree of
invalidity is declared to be nonretroactive, the spouse
granted the decree may petition the District Court for a
division of the marital propertv, maintenance, or child
support. Therefore, before making a decision as to the
retroactivity or nonretroactivity of a decree, the District
Court must consider all of the relevant circumstances
including the effect - -a retroactive decree - third parties
of on
and balance the equities involved.
Unfortunately, there is no evidence in this record that
the District Court considered any possible effect of a
retroactive decree on third parties before granting the
decree and declaring it to be retroactive.
In some jurisdictions it is well-settled that the
annulment of a marriage permanently terminates any prior
obligation for alimony or maintenance. See Hodges v. Hodges
(1978), 118 Ariz. 572, 578 P.2d 1001; Chavez v. Chavez
(1971), 82 N.M. 624, 4E(5 P.2d 735; Torgan v. Torgan (1966),
159 Colo. 93, 410 P.2d 167. In other jurisdictions, however,
it is well-settled that the annulment of a marriage
automatically reinstates any prior obligation for maintenance
or alimony. See Johnston v. Johnston (1979), 3 Kan.App.2d
208, 592 P.2d 1.32; Sutton v. Leib (7th Cir. 1952), 139 ~ . 2 d
163; Boiteau v. Boiteau (1948), 227 Minn. 26, 33 ~ . ~ . 2703.
d
While there is no consensus among the va-rious jurisdictions
as to the effect of an amnulment or decree of invalidity on a
prior spouse's obligation to pay alimony or maintenance, the
underlying basis for the courts1 decisions to terminate or
reinstate the obliqation appears to be the same: equity.
After examining the hasis for the other courts'
decisions, the Utah Supreme Court in Ferguson v. Ferguson
(Utah 1977), 564 P.2d 1380, recognized. the anomaly of a-
strict "all or nothing" rule and adopted a flexible rule
which neither automatically restores nor automatical1.y
terminates a prior obligation for alimony or maintenance.
The court held tha.t:
"Upon proper application to the District Court
invoking its continuing jurisdiction, it should be
free to proceed in conformity with its general
equitable powers upon these generally sound
propositions: that when a wife remarries, her
right to receive alimony under the divorce decree
from her former husband should terminate, and that
an annulment of the subsequent marriage should not
automatically restore the alimony under the prior
decree. Notwithstanding the foregoing, the court
may exercise its sound discretion in ordering
reinstatement of the alimony in the prior decree
if, upon its consideration of all of the
circumstances, it appears clearly and persuasively
that that is necessary to rectify serious inequity
or injustice." 564 P.2d at 1383.
We find the reasoning of the Utah Supreme Court to he
persuasive and adopt the above cited rule. It follows from
this that Dennis Williams1 obligation to pay maintenance to
his previous wife was not automaticall-y reinstated upon the
issuance of the decree of invalidity.
The decree finding Rose's second marriage void was
entered September 30, 1982. It has become final. In that
action, without making the findings required in section
40-1-402(5), MCA, the District Court ordered that the decree
of annulment be retroactive. However, the District Court in
which the marriage of Rose and Dennis was dissolved has
continuing jurisdiction over the parties in matters relating
to support and maintena.nce. In the statutory scheme provided
by section 40-1-402, MCA, in all-owing annulments to be made
nonretroactive, there is no provision as to which court, the
court having jurisdiction of the annulment cause, or the
court having jurisd.i.ction of the dissolution cause, should
determine the rights of "third parties." In the annulment
case here, Dennis is a "third party." His objections, i.f
any, to retroactive effect should be heard. in court. It is
appropriate in this case to require the District Court having
jurisdiction of the dissolution ca.use to provide that
opportunity to Dennis for objection and hearing, and for
findings to be made by the court leading to its decision.
Rased on the foregoing, the decision of the District
Court automatically reinstating Dennis Williams' obligation
to pay maintenance is reversed and the cause remanded to the
same District Court for further proceedings in accord.ance
with this opinion.
We Concur:
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Chief JuStice