NO. 93-359 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994

IN RE THE MARRIAGE OF JANICE C. HAHN, f/k/a Janice Cladouhos, Petitioner and Respondent, and THOMAS P. CLAWUHOS, Respondent and Appellant.

APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Thomas C. Honzel, Judge presiding.

COUNSEL OF RECORD: For Appellant: David N. Hull, Attorney at Law, Helena, Montana For Respondent: Jacqueline Terrell Lenmark, Keller, Reynolds, Drake,Johnson & Gillespie, Helena,Montana

Submitted 

### on Briefs: November 4, 1993 Decided: February 8, 1994Justice William E. Hunt, Sr., delivered the opinion of the Court. This is an appeal from the First Judicial District, Lewis and Clark County, regarding the enforcement of a dissolution agreement entered into by respondent Janice C. Hahn, f/k/a Janice Cladouhos, and appellant Thomas P. Cladouhos. The District Court found that under the terms of the dissolution agreement Thomas was obligated to pay Janice the maintenance payments which were part of the property settlement. The District Court denied Thomas'smotion to dismissJanice's motion to enforce theproperty settlementbased on thedoctrine of laches,and also denied bothparties their attorney fees. Thomas appeals from the order of the District Court. We affirm. We restate the issues as follows: 1. Did the DistrictCourt errwhen it denied Thomas's motion to dismiss Janice'spleading to enforce the maintenance provision, based on the doctrine of laches? 2. Did the District Court err when it found that the maintenance payments were part of the property settlement that did not terminate upon Janice's remarriage pursuant to 5 40-4-208(4), MCA? 3. Did the District Court errby failingto awardThomashis reasonable costs and attorney fees incurred in enforcing the court's prior order? Thomas and Janice were married in June 1965. Two children were born to the couple,with one minor child living at home at the time of the dissolution in 1990. The couple had a hostile anddifficult period of negotiations before agreeing to the custody, support, and property settlement agreement which was incorporated into the decree of dissolution on October 2, 1990. The agreement provides that the couple would pay specific amounts to each other as a distribution of the marital estate property. Paragraph 8 of the agreement provides that the family home be awarded to Janice with the requirement that Janice compensateThomas forhalf of the estimated realtor fee of $4200 if Janice did not sell the family home within two years of the agreement. Paragraph 18(a) provides that Thomas pay to Janice monthly payments of $650 for 15 months, beginning November 1990 "forher own support,care andmaintenance." Also,paragraph 18(b) provides that the funds in 18(a) are in the nature of a property settlement. Paragraph 18 (b)adds that thepayments under 18(a)are considered maintenance for tax purposes. On July 25, 1991, Janice remarried and Thomas immediately stoppedmaking the maintenance payments, claiming thatmaintenance payments automatically discontinue upon her remarriage pursuant to 3 40-4-208(4), MCA. Thomas demanded that Janice pay the required realtor fee of $4200 pursuant to paragraph 8 of the agreement because she did not sell the family home within two years of the agreement. Janice tried to resolve the matter by offering to offset thedelinquentmaintenancepayments against the realtor fee. Thomas refused the offer. On December 15, 1992, Thomas filed a motion with the District Court requesting that it hold 

### an ice in contempt for failure to 3comply with the agreement and order her to pay him $4200 for half the realtor fees. Thomas also requested costs and attorney fees allowed by the agreement. On January 15, 1993, Janice filed a cross-motion for contempt requesting the court hold Thomas in contempt for failure to pay maintenance asprovidedby the agreement, claiming that he owedher six property settlementpayments totaling $3900. On February 16, 1993, Thomas filed a motion to dismissJanice's motion based on the doctrine of laches, that Janice, without adequate explanation, failed to timely pursue court action to enforce these payments, rendering the enforcement of her asserted rights inequitable. On April 15, 1993, the matter was heard by the District Court with both parties offering testimony and evidence. On April 16, 1993, the court issued its findings of fact, conclusions of law, and order and memorandum. The order denied both parties1motions to hold each other in contempt, and denied Thomas's motion to dismiss Janice's motion based on laches. The court found that the maintenance paymentswerepart of theproperty settlement,and that Thomas was delinquent on five payments and owed Janice $3250, and Janice owed Thomas $4200 for half the realtor fee. Thomas was entitled to $950, whichwas the difference between the $4200Janice owed him, and the $3250 he owed Janice. The court also ordered that both parties pay their own costs and attorney fees. OnMay 3, 1993, Thomas filed a motion to reconsider, which the courtdenied. Judgmentwas entered against Thomas, and he appeals.ISSUE I Did the District Court err when it denied Thomas's motion to dismiss Janice's pleading to enforce the maintenance provision, based on the doctrine of laches? Section 1-3-218, MCA, provides that It[t]he law protects the vigilant before those who sleep on their rights." Laches is a concept of equity that can apply when a person is negligent in asserting a right, and can apply where there has been an unexplained delay of such duration or character as to render the enforcement of the asserted rights inequitable. Fillner v. Richland (1991), 247 Mont. 285, 290, 806 P.2d 537, 540. Each case must be determined on its own unique facts. Fillner, 806 P.2d at 540. This case involves a written dissolution agreement. Section 40-4-201(5), MCA, provides that marital or property settlement agreements are enforceable as contracts. See also, InRe Marriage of McKeon (l992), 252 Mont. 15, 18-19, 826 P.2d 537, 540. The statute of limitations to enforce a written contract is eight years. Section 27-2-202(1), MCA. When a claim is filedwithin the time limit set by the analogous statute, the defendant bears the burden to showthat extraordinarycircumstances existwhich require the application of laches. McGregor v. Mommer (1986), 220 Mont. 98, 107, 714 P.2d 536, 542. Here, Janice filed her claim to enforce the maintenance payments 15 months after Thomas stopped making the payments. Her filingwas within the eight year statutorytime limit. Therefore,Thomas bears the burden to show that extraordinary circumstances exist which require the application of laches. Thomas argues that the maintenance payments to Janice automaticallyterminateduponJanice's remarriage. Janice knew his position and she sat on her rights for 15months and did not pursue court action to enforce the payments until January 15, 1993. He asserts that the District Court erred when found that Janice had

a reasonable explanation for the delay, and further, it was inequitable for the court to uphold her claim. Thomas failed to provide facts to prove that Janice's delay

was unexplained. The District Court examined the circumstances surrounding the delay and in its findings stated the following: 13. When Tom ceased making the maintenance payments, Jan wrote Tom regarding this fact. She did not, however, commence court action. She testified that she did not start court action because it could be expensive; that their daughter Camille was having problems and that she thought the frictionbetween the twoparentswas damaging theirdaughter; and that she did not want todamage their daughter further. The District Court's findings are supported by the record. The record shows that when Thomas stopped making payments, the couple was still involved in hostile conversations concerning custody and visitation. Additionally, the couple's daughter was troubled about the friction between them and was seeing a counselor. The couple attended counseling sessions attempting to

recover from the misunderstandings created from the dissolution process. Janice attempted to reconcile the disagreements, hoping to avoid litigation whichwould increase the friction between them.the terms. Section 28-2-905(1), MCA. The District Court, in its findings, considered the following correspondence proposed by Janice's counsel before the final agreement: Janwill agree to accept $650.00 a month maintenance for aperiod of 15months. Additionally, shewill agreethat the maintenance will terminate upon her death or remarriage. Based on my advice, however, she will not agree that themaintenance be modifiable. Theperiod of time over which Tom will be paying maintenance is only slightly more than a year. It is part of the property settlement that theparties are negotiating. In view of the fact that Jan is willing to reduce her request for maintenance from five years to 15 months, it seemsa fair compromise on Tom's part to agree that it not be modifiable for those 15 months, especially inview of the fact that he is receiving a significant tax benefit as a result of characterizing this portion of the monthly supportpayments as maintenance. The District Court, also considered in its findings, the following response from Thomas's counsel: On August 16, 1990, counsel for Tom responded to Jan's proposal. With respect to the provision on maintenance he stated: "Tomagrees with this provision as stated in your August 15th letter." The DistrictCourt rejectedThomas's argument that the letters prove that the payments are maintenance which were terminated by 5 40-4-208(4), MCA. The court looked to the final agreement for the contract terms. The court, in its findings, quoted the following paragraphs of the agreement: 18. MAINTENANCE AND DISTRIBUTION OF ASSETS: (a) THOMAS shall pay to JANICE for 15 months commencing on the 1st day of [the] month following the execution of this Agreement, the sum of $650.00 monthly for her own support, care, and maintenance. (b) The sums agreed to in paragraph 18(a) are in the nature of aproperty settlementand are not modifiable by any subsequent court order following the dissolution of marriage, except on express written acknowledgedconsentof theparties. Theparties furtheragree, however,that the payments under subparagraph 18(a) are to be considered maintenance for tax purposes. Also, paragraph 24 of the agreement in pertinent part states: Exceptas toprovisions involving child custody, support, andvisitation, thisAgreementmay not be modified by any subsequent court order following the dissolution of marriage, except on express written acknowledge[d] consent of the parties. The District Court found that 5 40-4-208(4), MCA, applies to maintenance payments and does not apply in this case because the agreement, in paragraph 18(b), specifically states that the maintenance payments "are in the nature of a property settlementn1 that cannot be modified without the couplensconsent. Further, although the parties agreed that the payments would be considered maintenance for tax purposes, that compromise does not negate the clear language in 18(b) that the payments arepart of the property settlement. The District Court found that the language concerning terminationofmaintenancewasnot included in the final agreement, and that the final agreement controls. 

### We affirm the District Court's findingthat thepayments were

a part of theproperty settlement to Janice that did not terminate upon her remarriage. ISSUE 3 Did the District Court err by failing to award Thomas his reasonable costs and attorney fees incurred in enforcing the court's prior order?pay Thomas the realtor fee, and directed Thomas to pay Janice the unpaidproperty settlement payments thathe owed her. Finding that under these circumstances neitherpartywas totally successful, the District Court ordered that each party shouldpay its own attorney fees and costs. We affirm the District Court on this issue. 

### Affinued.

Justice

We concur:February

### 8,1994 CERTIFICATEOFSERVICE Ihereby certifythat thefollowingorderwas sentby United Statesmail,prepaid,tothefollowing named:

DAVIDN. HULL AttorneyatLaw P.O. Box534 Helena.MT 59624 JACQUELINET.LENMARK Keller, Reynolds,Drake,Johnson&Gillespie,P.C. 38S. Last ChanceGulch Helena,MT 59601

EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA