### No. 80-267 IN THE SUPRENE COURT OF THE STATE OF MONTANA 1981

IN RE THE MARRIAGE OF STANLEYM. KNUDSON, Petitioner and Appellant,

VS

# . FRANCESANNE 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: ForAppellant: Berger,Anderson Law Firm, Billings,Montana For Respondent: John F. Iwen, Great Falls, Montana

Submitted on briefs: December 4, 

### 1980 Decided:

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### ClerkMr. Justice John Conway Harrison delivered the Opinion of the Court. Stanley Knudson and Frances Knudson obtained 

### a decree of dissolution in the HillCounty DistrictCourt on October 12, 1978. The husband appealed from the property settlement provisions of the decree. The judgment was reversed inpart and affirmed inpart by this Court. Knudson v. Knudson (1980) Mont. 

## , 606 P.2d 130, 37 St.Rep. 147. Post-appeal motions were filedby both parties, and the husband now appeals from orders of the DistrictCourt requiring him to pay interest from the date of the decree and topay the wife 

### a reasonable rental value for the real property awarded to her under the decree and disposing of the parties1personal property. InAugust 1978 the parties obtained 

### a divorce decree purporting todivide the estate 60 percent to the husband and 40 percent to the wife. Under this decree the wife 

### was toreceive the farmhouse and outbuildings, valued at$87,000, and $113,000 incash, payable $13,000 inSeptember 1978 and $6,000 annually thereafter. The wife moved to amend this decree, and inOctober 1978 the DistrictCourt 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 filedpost-appeal motions. The DistrictCourt found that the wife was entitled to a reason-able rent from the husband for the time he occupied the farmhouse awarded toher. The courtdetermined that $6,000

was a fairrent for the period between October 1978 and April 1980. The court also required the husband topay interest on the $13,000 payment which was due in September 1978 and the $6,000 payment due inSeptember 1979. The DistrictCourt alsoreconsidered the property distribution and purported to equally divide certainpersonal property not mentioned in the original decree. Stanley Knudson offers three issues for this Court's review: 

### 1. Did the DistrictCourt 

### err inreconsidering distribution of personal property after the cause had been remanded by this Court? 2. Did the DistrictCourt 

### err inits actual distribution of the personal property? Did the DistrictCourt 

### err indirecting Stanley Knudson topay to hiswife rent and interest dating from the court'

### s decree? In our resolution of the firstappeal 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 

### isremanded to the District Court for amendment of judgment inaccordance with this opinion." 606 P.2d at135, 37 St.Rep. 

### at 153. The husband contends inthis appeal that the District Court 

### isrelitigating issues regarding the couple's personal property. He argues that the personal property disposed of by the DistrictCourt had already been distributed and that distribution affirmed by this Court inKnudson 

### v. Knudson, supra. Wedo not agree.On May 

### 14, 1980, the DistrictCourt found that, 

### "[tihe issue of the division of personal property, mainly household furnishings, located atthe family residence and respondent's apartment, was not raised atthe 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 firstdecree. To the extent the District Court determined the parties' rights inpersonal property previously unaccounted for, or excluded from, the first decree, the husband's argument that the judge was relitigating the personal property distribution 

### isunpersuasive. Weconclude that the judge 

### wasmerely completing his initial task of settling the marital estate. In view of the fact that the distribution of the household furnishingswas a continuation of the court's originalproceeding, 

### we are obliged torespect 

### itsjudgment 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 eithermade application for a posting of a supersedeas bond, moved to dissolve the stay of execution,

or asked the court to impose a rental aspart 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 inhis choices and should not be required topay rent. Wewillnot allow the husband to benefit from his own recalcitrance. From the date of the initial decree granting hiswife the property, he knew or should have known that hewas using and occupying realtywhich 

### was not his own. We find that itwas his responsibility, not the wife's, to proceed toward 

### a determination and protection of his rights. This Court 

### willnot 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 decreemakes him liable toher forreasonable rental value. In determining thatvalue, 

### we are obliged to respect the DistrictCourt's judgment, and in the absence of



### a clear abuse of discretion, thatjudgment 

### willnot 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 DistrictCourt 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 thatbecause of the stay of execution, he owes no intereston the $13,000. Section 25-9-205, MCA, provides that interest 

### ispayable on judgments atthe 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 afterJuly 1, 1979. Prior to that date, the previous legal rate of 6 percent applies. Rule 31, M.R.App.Civ.P., provides inrelevant part that, "[ilf a judgment formoney ina civil case 

### is affirmed, whatever interest 

### is allowed by law shall be payable from the date the judgment was rendered ormade in the district court

# ." The husband maintains thatwhen he limited his appeal to the issue of his retirement pension, his wife could haveelected toaccept the other benefits in the decree and could have asked the court todissolve the stay of execution; that her failure to do so or toask 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 staywas not entered until after she filed her notice of appeal; and that it can be assumed thatwife permitted the stay to continue because it inured to her benefit. We do not agree. We held inResner 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 inthe trialcourt even though it 

### is subject to directattack, 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 

### isnot made, the person entitled to the judgment 

### is further entitled to a fairrate of interest. The husband moved the court for a stay of execution. Thereafter, he made no attempt to dissolve the stayhimself

ormake any attempt to determine what obligations 

### were accruing. This Court 

### willnot allow the husband to avoid paying interestmerely by arguing that his wife did not do enough to secure it. We 

### willdefer to the DistrictCourt's judgment inthismatter, for

### we determine that interest

### was properly imposed under Rule 31, M.R.App.Civ.P., and applicable 

### case law. This cause isaffirmed on allissues.We 

### concur: 

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# w-ad bdJq 

### Chief Justice



# V 

# Qj4%~. Justices

This cause was submitted prior toJanuary 5, 1981.