NO. 12083 INTHE SUPREME COURT OF THE STATE OF MONTANA 1972

RUTH A. MOVIUS

## , Plaintiff and Appellant,

-vs

# - ARTHUR 

### J. MOVIUS, JR., Defendant and Respondent.

Appeal from: District Court of the Thirteenth Judicial 

### District, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellant

### : Scott, Scott and Baugh, Billings, Montana. Jeffrey

### JoScott argued, Billings, Montana. For Respondent

### : Michael J. Whalen argued, Billings, Montana.

Submitted: February 16, 1972 Decided : 

# flM 1 

# -197~~

1 IHonorable Jack D. Shanstrom, District Judge, sitting in place of 

### Mr. Justice Wesley Castles, delivered the Opinion of the Court. This appeal and cross-appeal arises out of two separate actions filed in the district court of the thirteenthjudicial district, in and for the county of Yellowstone, both of which were consolidated in the lower court. The source of both actions isa divorce decree entered between the parties on August 8, 1956. The decree incorporated by reference a property settlement agreement, the terms of which form the basis of this appeal. Appellant here and plaintiff below isthe firstwife of respondent who isalso a cross-appellant. The parties in this opinion will be referred to respectively as plaintiff and defendant. The matters presently before the Court were instituted by plaintiff in the divorce action to enforce certain terms of the property settlement agreement alleged tohave been breached by defendant. Plaintiff atthe same time filed an original complaint in specific performance to compel compliance with the same agreement. The reason for thisduplication in the lower court isnot entirelyclear. In any event, the issues in each case are identical, and will be so treated here. Plaintiff asserts six issues for review; defendant cross-appeals on the court's requirement that he pay any alimony atall. All issues in varying degrees go to the district court's construction of the property settlement agreement. Itismost convenient to discuss the issues in conjunction with the evidence. The important facts arenot in dispute. 

### Atthe time of their divorce in 1956, the parties agreed in writingon matters of property settlement, alimony and child support. The pertinent provisions of their agreement read as follows: "6. Beginning September 1, 1956, First Party will make the following monthly payments to Second Party: "(a) The sum of $632.00 per month. "(b) The 

### sum of $150.00 per month for the support of 

### Arthur J. Movius, 111. "(c) The 

### sum of $150.00 per month for the support of David Lewis Movius."(d) The additional sum of $150.00 per month for the support of each of said sons during the months of each year each isattending college. "Second Party agrees that from the payments specified under (b), (c) and (d), she will care for and maintain said children until they respectively complete their college education; provided, however, that ifthe sums specified under (b), (c) and (d), together with other income, ifany, received by said children should be inadequate to pay for the maintenance of said children and their college expenses, First Partywill, upon satisfactory proof that the aforesaid sums are inadequate for such purposes, make such additional payments as may be reasonably necessary to permit each ofsaid children tomaintain the livingstandards prevalent atthe college which he isattending.

"Ifthe adjusted gross income ofthe Party ofthe First Part isless than $35,000.00 for any year, the payments toSecond Party forthe succeeding year under subparagraphs (a), (b), (c), and (d) shall be decreased by 4 per cent ofthe difference between the adjusted gross income and $36,500.00. Ifthe adjusted gross income of First Party ismore than $38,000.00 forany year, the payments to Second Party for the succeeding year under subparagraphs (a), (b), (c) and (d) shall be increased by 4 per cent ofthe difference between $36,500.00 and the adjusted gross income.

### " This extensive quotation forms the basis of plaintiff's contentions

on appeal. She claims firstthat the districtcourt should have awarded her the sum of $6,750.00 for additional expenses incurred by her forthe college education ofthe two boys over and above defendant's child support payments. This the court refused todo for the reason that plaintiff produced no proof

as to the character ofsuch expenses, their amount or their necessity. In short, the trial court found that plaintifffailed to show the "satisfactory proof" required by paragraph 6 (d) tocreatethe extra obligation. Likewise, itappears during the period plaintiffclaims the additional support that defendant gave directfinancial aid to the children while they were enrolled incollege. We agree that plaintiff's claimfor additional education expenses isnot sustained by the evidence. The children being now emancipated and educated, there isno further issue on childsupport. Plaintiff's next claim has todo with her alimony rights. Defendant's income isdown substantially from itslevel atthe time ofthe divorce. Applyingthe 4 percent reduction formula provided inthe agreement, the districtcourt denied plaintiff in entirety her right to alimony in 1969 and reduced itsubstantially for 1970. In doing so, the court applied the 4 percent adjustment figure on amonthly rather than an annual basis. The effect of this was togive defendant the benefit of 48 percent (4percent per month times 12months) of any reduction in income below $36,500.as an offset against alimony. Plaintiff urges this was error, that the 4 percent reduction factor should have been applied annually. The property settlement agreement does not statewhich interpretation iscorrect. Both parties testified in favor of the interpretationmost favorable to each. In concluding as itdid, the district court found: "Referring to the agreement as a whole, there is discernible an intention of the parties to settletheir affairs on 

### an approximate equal sharing basis. The division of real and personal property interests, on the terms provided, demonstrates this. 

### An analysis of paragraph 6 shows the existence of a similar objectivewith respect to Plaintiff's entitlement to share in the Defendant's future income. By keying the amount of support payments to the riseand fall of Defendant's income, when itvariesmore than $1,500.00 either way from $36,500.00, an adjustment figure of 4%per month approaches an equal division of income. Although the agreement provides foran increase or a decrease of payments 'for the succeeding year', itisthe payments specified under subparagraphs (a), (b), (c)and (d)which areadjusted and they aremonthly payments. 

### On this point the Defendant must prevai1

# ." Whi1 e we recognize plaintiff's argument that a contrary decision might have been reached, we cannot say as amatter of law that the district court misconstrued the agreement. Itwas forced to resolve an ambiguity, and there are sound reasons to support the decision reached. The courtwas compelled to look atthe overall intent of the parties by established principles of contract construction, such as stated in Steen vs. Rustad, 132 Mont. 96, 313 P.2d 1014: 

### " 

## * *

## * Itiswell established that a court, in interpreting awritten instrument, will not isolate certain phrases of that instrument in order to garner the intent of the parties, but will grasp the instrument by its four corners and inthe lightof the entire instrument, ascertain the paramount and guiding intention of the parties. 

## *

## **"Plaintiff next urges that the court, under the same formula applied above, should have increased rather than decreased her alimony. This argument isbased on the fact that the defendant, a physician and surgeon practicing in Billings, sold his interest in his medical partnership (The Billings Clinic) in 1967 for $80,000, payable over two years. This, urges plaintiff, should have been includable as part of defendant's "adjusted gross income" for those years, since itwas so listed on his income tax returns. The trial court declined to accept this contention and excluded the sale proceeds from defendant's income for purposes of determining alimony. In so holding, the court emphasized the provisions of paragraph 2 of the property settlement agreement, reading as follows: "The Party of the First Part shall retain and own all property standing in his name, consisting of the following:

"(b) His interest in the assets and accounts receivable of The Billings Clinic." To adopt plaintiff's position would operate to vest her with an interest in property that was clearly granted to defendant years before in the agreement. The district court reasoned and we agree that to include the sale proceeds of defendant's separate property for alimony computation would negate the express intention of the parties as above quoted. Plaintiff in 1956 relinquished all interest in and to The Billings Clinic. She should not now be heard to reassert it. In conjunction with these proceedings in the lower court, the defendant petitioned to henceforth completelyeliminate al1alimony requirements. His petition was based upon an alleged change in the financial circumstances of the parties. The trial court complied to the extent of reducing plaintiff's alimony to $132 per month. Both parties appeal from this determination. There isno issue raised as to the authority of the district court to make the modification. Whether the provisions of the property settlement agreement were contractual or decretal isnot argued. The question iswhether

### the court abused its discretion in ruling as it did. The standard to be applied in such cases is stated in Daniels

### v. Daniels, 147Mont. 57, 409 P.2d 824,as follows: 

### " 

## *

## ** Thus,we see that under our law there is no guarantee of an annuity to a divorced wife. The trial judge 

### in the ambit of his discretionmust weigh the relative circumstances of the parties in light of the evidence presented in determining whether conditions demand a variation, alteration or revocation of alimony and support payments. We

### will look critically at that determination only if it is shown to be unsupported by the evidence before the trial court of the changing situationsof the parties. The delicate decision is one of balancing the needs of the wife for support and maintenance against the husband's honest abil

### ity to provide.

### " Under the facts here, we do not find the necessary abuse ofdiscretion. For the tenyears following the divorce, defendant's income ranged generally between $36,500 and $45,000 annually. Then,with the termination of his partnership interest in The Billings Clinic in 1967,defendant's 

### income dropped to 

### $1 9,500the followingyear. It rose to $26,500 in 1969 and was not more than that in 1970. At the time of the hearing, defendant was $10,000 

### in debtwith no assets beyond accounts receivable from his medical practice. He had exhausted the receipts from the sale of the Clinic in setting up his new practice, making alimony payments and meeting living expenses. Plaintiff, on the other hand, had accumulated a net worth ofapproximately $137,000 and in addition was a 50percent beneficiary to the proceeds of an estate appraised at $102,000 at the time of hearing. Although her income earning capacity was in dispute due to injuries sustained in a bicyclepedestrian accident,we cannot disagree with the district court's holding that she was financially able to provide for herself. The factthat defendant used a $20,000 inheritance from his sister in 1969 

### tomeetmortgage payments on a home owned by his presentwife is not in our opinion sufficient justification to overturn the lower court's ruling. Again we are dealing with broad discretionary guidelines, and whether we agree or disagree with the district court is not the issue. We are not able to stateas a matter of law that the trial judge abused "the ambit of his discretion." Daniels

## ,supra. What we have said above applies equally to both plaintiff'sappeal and defendant's cross-appeal on the subject offuture alimony. The ruling isaffirmed. The $132 monthly payments do no more than pay the premiums on

an insurance policy carried by plaintiff (with the children as contingent beneficiaries) on defendant's 1 ife. Such insurance policywas referred to inthe property settlement agreement. There isno dispute that out ofthe $632 monthly a1imony payments calledfor therein, the sum of $132 was set aside as the insurance premium. This being the fact, we cannot dispute the districtcourt's finding: "Considering the purposes behind the creation and maintenance of this insurance policy, itshould be continued ineffect. "The payment to plaintiff, therefore, should be reduced tothe sum of$132.00 per month from and after March 6, 1970." The final issue for review iswhether the districtcourt erred by dismissing plaintiff's claimfor one-half the value ofcertain Montana State College revenue bonds owned by the parties atthe time ofthe divorce. Paragraph 3 ofthe property settlement agreement provides as follows: "Each of the parties shall be entitled toan undivided one-half interest inall stocks and bonds standing in the names ofthe parties hereto as joint tenants." There ismuch argument whether the bonds were owned by the parties

as joint tenants or, as contended by defendant, were bearer bonds. The districtcourt held they were notjointly owned. We need not resolve that issue, for itisundisputed that defendant cashed the bonds in1957 and retained the proceeds. He did so inopposition toa demand made by plaintiff's counsel in1957 or 1958 that he pay over one-half the proceeds to her. InMontana, an action upon the provisions ofawritten contract must be commenced within eightyears or be barred by the Statute of Limitations. Section 93-2603, R.C.M. 1947. Plaintiff here waited nearly 14years after the alleged breach became known toher. The judgment ofthe districtcourt isaffirmed.' Hon. Jack Shanstrom, districtjudge, sitting in place of Mr. JusticeWesley Castles.

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