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, 1994 
Justice 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's motion to 

dismiss Janice's motion to enforce the property settlement based on 

the doctrine of laches, and also denied both parties their attorney 

fees. Thomas appeals from the order of the District Court. 

We affirm. 

We restate the issues as follows: 

1. 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? 

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 err by failing to award Thomas his 

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 and 
difficult 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 

compensate Thomas for half 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 

"for her own support, care and maintenance." Also, paragraph 18 (b) 

provides that the funds in 18(a) are in the nature of a property 

settlement. Paragraph 18 (b) adds that the payments under 18 (a) are 

considered maintenance for tax purposes. 

On July 25, 1991, Janice remarried and Thomas immediately 

stopped making the maintenance payments, claiming that maintenance 

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 the delinquent maintenance payments 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 

3 
comply 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 as provided by the agreement, claiming that he owed her 

six property settlement payments totaling $3900. On February 16, 

1993, Thomas filed a motion to dismiss Janice'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 parties1 motions 

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 payments were part of the property 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, which was the difference between the $4200 Janice 

owed him, and the $3250 he owed Janice. The court also ordered 

that both parties pay their own costs and attorney fees. 

On May 3, 1993, Thomas filed a motion to reconsider, which the 

court denied. Judgment was 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, In Re 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 filed within the 

time limit set by the analogous statute, the defendant bears the 

burden to show that extraordinary circumstances exist which 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 

filing was within the eight year statutory time 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 

automatically terminated upon Janice's remarriage. Janice knew his 

position and she sat on her rights for 15 months 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 friction between the two parents was damaging 

their daughter; and that she did not want to damage 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 which would 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: 

Jan will agree to accept $650.00 a month maintenance for 

a period of 15 months. Additionally, she will agree that 

the maintenance will terminate upon her death or 

remarriage. Based on my advice, however, she will not 

agree that the maintenance be modifiable. The period of 

time over which Tom will be paying maintenance is only 

slightly more than a year. It is part of the property 

settlement that the parties are negotiating. In view of 

the fact that Jan is willing to reduce her request for 

maintenance from five years to 15 months, it seems a fair 

compromise on Tom's part to agree that it not be 

modifiable for those 15 months, especially in view of the 

fact that he is receiving a significant tax benefit as a 

result of characterizing this portion of the monthly 

support payments 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: "Tom agrees with this provision as stated in 

your August 15th letter." 

The District Court rejected Thomas'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 a property settlement and are not modifiable by 

any subsequent court order following the dissolution of 

marriage, except on express written acknowledged consent 
of the parties. The parties further agree, 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: 

Except as to provisions involving child custody, support, 

and visitation, this Agreement may 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 couplens consent. 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 are part of the property 

settlement. 

The District Court found that the language concerning 

termination of maintenance was not included in the final agreement, 

and that the final agreement controls. 

We affirm the District Court's finding that the payments were 

a part of the property 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 

unpaid property settlement payments that he owed her. Finding that 

under these circumstances neither party was totally successful, the 

District Court ordered that each party should pay its own attorney 

fees and costs. We affirm the District Court on this issue. 

Af f inued. 

Justice 

We concur: 
February 8, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

DAVID N. HULL 

Attorney at Law 

P.O. Box 534 

Helena. MT 59624 

JACQUELINE T. LENMARK 

Keller, Reynolds, Drake, Johnson & Gillespie, P.C. 

38 S. Last Chance Gulch 

Helena, MT 59601 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA