No. 80-267 

IN THE SUPRENE COURT OF THE STATE OF MONTANA 

1981 

IN RE THE MARRIAGE OF 

STANLEY M. KNUDSON, 

Petitioner and Appellant, 

VS . 

FRANCES ANNE KNUDSON, 

Respondent and Respondent. 

Appeal from: District Court of the Twelfth Judicial District, 

In and For the County of Hill. 

Honorable B. W. Thomas, Judge presiding. 

Counsel of Record: 

For Appellant: 

Berger, Anderson Law Firm, Billings, Montana 

For Respondent: 

John F. Iwen, Great Falls, Montana 

Submitted on briefs: December 4, 1980 

Decided: EB 9- lgtgf 

led : -pa?+ w 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Stanley Knudson and Frances Knudson obtained a decree 

of dissolution in the Hill County District Court on October 

12, 1978. The husband appealed from the property settlement 

provisions of the decree. The judgment was reversed in part 

and affirmed in part by this Court. Knudson v. Knudson 

(1980) Mont. , 606 P.2d 130, 37 St.Rep. 147. 

Post-appeal motions were filed by both parties, and the 

husband now appeals from orders of the District Court requiring him to pay interest from the date of the decree and 

to pay the wife a reasonable rental value for the real 

property awarded to her under the decree and disposing of 

the parties1 personal property. 

In August 1978 the parties obtained a divorce decree 

purporting to divide the estate 60 percent to the husband 

and 40 percent to the wife. Under this decree the wife was 

to receive the farmhouse and out buildings, valued at $87,000, 

and $113,000 in cash, payable $13,000 in September 1978 and 

$6,000 annually thereafter. The wife moved to amend this 

decree, and in October 1978 the District Court granted her 

motion. The court found that she was entitled to an additional $20,000, representing her share of her husband's 

railroad retirement pension which had not been originally 

considered by the court. The husband appealed to this Court 

solely on the basis of the inclusion of the pension. We 

reversed with regard to the inclusion of the pension and affirmed the balance of the decree. See Knudson v. Knudson, 

supra. 

Both parties then filed post-appeal motions. The 

District Court found that the wife was entitled to a reason- 
able rent from the husband for the time he occupied the 

farmhouse awarded to her. The court determined that $6,000 

was a fair rent for the period between October 1978 and 

April 1980. The court also required the husband to pay 

interest on the $13,000 payment which was due in September 

1978 and the $6,000 payment due in September 1979. The 

District Court also reconsidered the property distribution 

and purported to equally divide certain personal property 

not mentioned in the original decree. 

Stanley Knudson offers three issues for this Court's 

review: 

1. Did the District Court err in reconsidering distribution of personal property after the cause had been remanded 

by this Court? 

2. Did the District Court err in its actual distribution of the personal property? 

Did the District Court err in directing Stanley 

Knudson to pay to his wife rent and interest dating from the 

court' s decree? 

In our resolution of the first appeal of this case, we 

ruled: 

"The decree of the District Court is affirmed 

except insofar as it awards the wife a share 

of the husband's railroad retirement pension. 

This cause is remanded to the District Court 

for amendment of judgment in accordance with 

this opinion." 606 P.2d at 135, 37 St.Rep. 

at 153. 

The husband contends in this appeal that the District 

Court is relitigating issues regarding the couple's personal 

property. He argues that the personal property disposed of 

by the District Court had already been distributed and that 

distribution affirmed by this Court in Knudson v. Knudson, 

supra. We do not agree. 
On May 14, 1980, the District Court found that, " [tihe 

issue of the division of personal property, mainly household 

furnishings, located at the family residence and respondent's apartment, was not raised at the original proceedings 

or disposed of by the court's decree. " This Court can find 

no specific distribution of property which was already 

disposed of by the first decree. To the extent the District 

Court determined the parties' rights in personal property 

previously unaccounted for, or excluded from, the first 

decree, the husband's argument that the judge was relitigating the personal property distribution is unpersuasive. 

We conclude that the judge was merely completing his initial 

task of settling the marital estate. In view of the fact 

that the distribution of the household furnishings was a 

continuation of the court's original proceeding, we are 

obliged to respect its judgment in the absence of arbitrary 

action or the failure to employ conscious judgment. In re 

Marriage of Jacobson (1979), Mont. , 600 P.2d 

1183, 36 St.Rep. 1773, 1776. 

Nor do we accept husband's argument regarding the 

District Court' s imposition of rent. Husband maintains that 

had the wife either made application for a posting of a 

supersedeas bond, moved to dissolve the stay of execution, 

or asked the court to impose a rental as part of the stay of 

execution, he would have had the option of continued occupancy or removal. Because of his wife's inaction, the 

husband contends he was limited in his choices and should 

not be required to pay rent. 

We will not allow the husband to benefit from his own 

recalcitrance. From the date of the initial decree granting 

his wife the property, he knew or should have known that he 
was using and occupying realty which was not his own. We 

find that it was his responsibility, not the wife's, to 

proceed toward a determination and protection of his rights. 

This Court will not allow a person to benefit from his own 

inaction. As a matter of fairness, we conclude that the 

husband's occupancy of his wife's property from the date of 

the initial decree makes him liable to her for reasonable 

rental value. In determining that value, we are obliged to 

respect the District Court's judgment, and in the absence of 

a clear abuse of discretion, that judgment will not be 

disturbed on appeal. No such abuse took place here. Lumby 

v. Doetch (1979), - Mont. , 600 P.2d 200, 202, 36 

St.Rep. 1684, 1687. 

In the District Court the wife claimed interest on 

$13,000 from the date of the judgment and on $6,000 from 

September 1, 1979. Husband does not deny liability for the 

interest on the $6,000, but asserts that because of the stay 

of execution, he owes no interest on the $13,000. 

Section 25-9-205, MCA, provides that interest is payable on judgments at the rate of 10 percent per annum; but, 

under Section 2, Chap. 649, Laws of 1979, that rate applies 

only to the balance owing on judgments from and after July 

1, 1979. Prior to that date, the previous legal rate of 6 

percent applies. 

Rule 31, M.R.App.Civ.P., provides in relevant part 

that, "[ilf a judgment for money in a civil case is affirmed, 

whatever interest is allowed by law shall be payable from 

the date the judgment was rendered or made in the district 

court . " 

The husband maintains that when he limited his appeal 

to the issue of his retirement pension, his wife could have 
elected to accept the other benefits in the decree and could 

have asked the court to dissolve the stay of execution; that 

her failure to do so or to ask that the court require the 

payment of rent for the real property as a condition to the 

stay, amounted to a waiver of any claim on her part for 

interest or rent; that, in fact, the stay was not entered 

until after she filed her notice of appeal; and that it can 

be assumed that wife permitted the stay to continue because 

it inured to her benefit. We do not agree. 

We held in Resner v. Northern Pac. R.R. Co. (1973), 161 

Mont. 177, 505 P.2d 86, that a judgment bears interest from 

the date of its entry in the trial court even though it is 

subject to direct attack, citing Stockton Theatres, Inc. v. 

Palermo (1961), 55 Cal.2d 439, 11 Cal.Rptr. 580, 582, 360 

P.2d 76, 78. Although these cases did not involve a stay of 

judgment, they stand for the proposition that once a person 

is liable for a money judgment, and payment is not made, the 

person entitled to the judgment is further entitled to a 

fair rate of interest. 

The husband moved the court for a stay of execution. 

Thereafter, he made no attempt to dissolve the stay himself 

or make any attempt to determine what obligations were 

accruing. This Court will not allow the husband to avoid 

paying interest merely by arguing that his wife did not do 

enough to secure it. We will defer to the District Court's 

judgment in this matter, for we determine that interest was 

properly imposed under Rule 31, M.R.App.Civ.P., and applicable case law. 

This cause is affirmed on all issues. 
We concur: 

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Chief Justice 

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Justices 

This cause was submitted prior to January 5, 1981.