NO. 83-225 

IN THE SUPRET4E COURT OF THE STATE OF ?I!ONT,IZNA 

19 83 

IN RE THE MARRIAGE OF 

PATRICIA ANN GIBSON, 

Petitioner and Appellant, 

and 

HARLEY GIBSON, 

Respondent and Respondent. 

APPEAL FRON: District Court of the Fourth Judicial District, 

In and for the County of Yissoula, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Ferguson F; Mitchell, llissoula, blontana 

For Respondent: 

Datsopoulos, ?!acDonald 4 Lind, P.!issoula, Montana 

Submitted on Briefs: July 21, 1983 

Decided: November 3, 1983 

Filed: NUV j - lggj 

--- Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Patricia Ann Gibson (Wife) appeals from a judgment of 

the District Court of the Fourth Judicial District. That 

judgment concluded that interest on $7,500 due from Harley 

Ross Gibson (Husband) to Wife should accrue from March 7, 

1983, the date of the judgment. It ordered that each party 

bear his or her own attorney fees. We reverse the judgment 

of the District Court. 

The following issues are presented on appeal: 

1. Can a property settlement agreement, incorporated 

into a dissolution decree, be modified by oral agreement? 

2. Was there substantial evidence to support the 

District Court's finding that the parties effected oral 

modification of the dissolution decree? 

3. When did interest begin to accrue on the property 

payment due from Husband to Wife? 

4. Did the District Court abuse its discretion by 

failing to award attorney fees to the prevailing party in the 

enforcement action? 

The parties chose to dispose of their marital property 

by executing a property settlement agreement, which they 

entered into on November 15, 1979, was approved by the court, 

and was incorporated into the dissolution decree on that same 

date. The agreement provides in part: 

"That in payment for Wife's interest in the 

property and for maintenance, Husband will pay to 

Wife a total sum of TEN THOUSAND DOLLARS 

($10,000.00) with TWO THOUSAND FIVE HUNDRED DOLLARS 

($2,500.00) due and payable on the date of the 

final decree of dissolution of marriage and the 

remaining SEVEN THOUSAND FIVE HUNDRED ($7,500.00) 

-- due six (6) months --- from the date of the final 

decree - of-dissolution - of marriage. " (emphasis added) 

The agreement makes no mention of the real property owned by 

the parties as joint tenants at that time. Nothing in the 
agreement or the decree indicates that the $7,500 payment was 

conditioned upon funds becoming available from a particular 

source or upon Husband's ability to satisfy the obligation. 

The agreement further provides that: 

"Should any action be commenced to enforce, modify, 

or interpret any provisions contained herein, the 

Court, as a cost of suit, shall award a reasonable 

attorney's fee to the successful party." (emphasis 

added) 

On February 14, 1983, Wife filed a Motion for Order to 

Show Cause why Husband shoul-d not be held in contempt for 

failure to pay Wife $7,500 in 1980, as ordered by the court. 

Wife also requested the court to order Husband to pay 

interest on the amount due, as well as reasonable attorney 

fees and costs incurred in bringing the enforcement action. 

A hearing was conducted April 4, 1983. 

Husband admitted that he owed the wife $7,500. He 

testified that it was - his understanding at the time of the 

dissolution decree that the $7,500 was to be obtained "from 

the sale of the only asset that we had at that time, which 

was a piece of land." He also testified that it was his 

understanding that the $7,500 would be paid as soon as the 

land was sold. 

"Q. So whether it was six months as indicated in 

the decree or earlier or later, it was your 

understanding it would be paid when the land 

turned? 

"A. That's right." 

A balloon payment on the real property fell due in the 

spring of 1980. The seller denied Husband's request for an 

extension of time. Husband borrowed funds from a bank to 

make a timely payment to seller. As a condition precedent to 

the bank loan, the bank required that Wife's name be removed 

from the property title. The bank provided a quitclaim deed 

to the Husband, who forwarded it to the Wife. He testified 
that the Wife agreed to the transaction, but he specifically 

denied that the deed indicated anything about Wife's 

understanding as to when she would be paid. 

"Q. And did you indicate to her anything about the 

payment of her seventy-five hundred dollars at that 

time? 

"A. No -- well, I believe all I would have said 

was that the bank has requested that you sign the 

land over to me so that they will take the mortgage 

on it, and it was more for their convenience than 

anything else, as I remember it." 

Husband presented no evidence as to Wife's understanding of 

when the $7,500 obligation would be paid. 

Wife testified that she signed the deed before 

Husband's payment was due. As far as she was concerned, 

Husband's bank transaction and his obligation to her were 

separate and d.istinct. She testified that it was her 

understanding that $7,500 was due to her six months from the 

time of the divorce, i.e. on May 16, 1980. 

"Q. Did you at any point agree to wait until the 

land was sold? 

"A. No, Ross kept telling me, 'You will get your 

money when the land sells, ' but I said, 'I want my 

money as soon as possible.'" 

On cross-examination, the Wife was asked whether she demanded 

payment at the time she signed the quitclaim deed. She 

testified that she told Husband she wanted her money and he 

told her, "You will get it when the land sells." She 

explained that prior to this enforcement action, she and her 

attorney had made numerous demands for payment. Wife 

concluded she had been "overly generous" in not instituting 

legal proceedings against Husband earlier. 

The District Court's Findings of Fact, Conclusions of 

Law and Order of March 7, 1983 provide in pertinent part: 

"The parties entered into a verbal agreement which 

was not specifically set forth in the Marital and 

Property Settlement Agreement, that the balance of 

the Ten Thousand Dollar ($10,000.00) amount for the 
wife's interest in the property and for maintenance 

would be paid upon sale of the specific real 

property described above. The Petitioner agreed to 

accept such payment for her interest in the land 

and for maintenance." Finding of Fact No. 4. 

"Despite the fact that the Marital and Property 

Settlement Agreement provided that the sum of Seven 

Thousand Five Hundred Dollars ($7,500.00) was due 

from Respondent to Petitioner six (6) months from 

the final Decree of Dissolution, Petitioner, in 

accordance with the verbal agreement of the 

parties, took no action until February 14th, 1983, 

the date of the Order to Show Cause herein, in 

attempting to obtain payment of the Seven Thousand 

Five Hundred Dollars ($7,500.00) amount." Finding 

of Fact No. 8. 

"Both parties are financially able to pay their own 

costs and expenses in this matter." Finding of 

Fact No. 10. 

"Respondent shall have until May lst, 1983 to pay 

to the Petitioner the full sum due plus interest as 

hereinafter set forth." Conclusion of Law No. 3. 

"Petitioner is entitled to interest on the Seven 

Thousand Five Hundred Dollar ($7,500.00) amount 

only from the date of this Judgment at the 

statutory rate." Conclusion of Law No. 5. 

The court ordered Husband to pay Wife $7,500, plus interest 

accrued at the statutory rate from March 7, 1983. The court 

further ordered that if payment were not made on or before 

May 1, 1983, the court would order the property sold and Wife 

might be entitled to a deficiency judgment. 

Modification of a provision for maintenance or property 

disposition is governed by section 40-4-208, MCA. ~lthough 

the property settlement agreement provided that $10,000 would 

be paid by Husband "for Wife's interest in the property and 

for maintenance," both parties treated this as a property 

disposition provision on appeal. 

Section 40-4-208(3), MCA provides: 

"(3) The provisions as to property disposition may 

not be revoked or modified by a court, except: 

(a) upon written consent of the parties; or 

(b) if the court finds the existence of 

conditions that justify the reopening of a 

judgment under the laws of this state." 
The District Court made no findings or conclusions indicating 

that there were conditions that justified the reopening of 

the 1979 decree. No evidence of oppression, fraud or malice 

was presented at the show cause hearing. 

Husband argues on appeal that the quitclaim deed 

executed by the Wife constitutes "written consent" on her 

part to be paid when Husband sold the property. The quitclaim deed was not offered as evidence at the hearing and is 

not part of the record on appeal. Husband's assertion of 

written consent is contradicted by the District Court's 

specific finding that the parties entered into a verbal 

agreement. Both parties testified that Wife's signing of the 

deed was a condition required by the lender bank, not an 

agreement to postpone the due date of the property settlement 

payment. 

Section 40-4-208(3), MCA specifies that a provision as 

to property disposition may not be modified by a court unless 

the parties have consented in writing to the modification or 

the court finds conditions that justify reopening the 

original decree. We hold that the District Court's 

modification of this provision of the parties' agreement was 

a clear abuse of discretion. Since this holdinq nullifies 

the second issue on appeal, we proceed to the question of 

interest. 

11. 

The parties' settlement agreement made no provision for 

accrual of interest on the amount due from Husband to Wife. 

Husband argues on appeal that because the parties orally 

agreed to postpone the due date of the payment, interest 

should not begin to accrue until March 7, 1983, the date of 

the District Court's modification order. Wife contends that 

under both judgment and contract law, she is entitled to 
interest from May 16, 1980, the date the payment was deemed 

due by order of the court. 

Wife relies on Williams v. Rudke (Mont. 1980), 606 P.2d 

515, 37 St.Rep. 228. There, we held that when the marital 

dissolution decree is silent as to interest, such interest is 

automatically collectible by the judgment creditor spouse on 

past due payments for support or maintenance, the same as any 

other money judgment. Williams, 606 P.2d at 519, 37 St.Rep. 

at 234. More recently in Torma v. Torma (Mont. 1982), 645 

P.2d 395, 398, 39 St.Rep. 839, 842, this Court reiterated 

that interest is automatically collectible by the judgment 

creditor spouse on past due child support payments, absent a 

contrary provision in the dissolution decree. 

Knudson v. Knudson (Mont. 1981), 622 P.2d 1025, 38 

St.Rep. 154, is more on point with the present case since 

interest on a cash award was at issue. Under the Knudson 

decree, the wife was to receive $13,000 from the husband in 

September 1978 and $6,000 in September 1979. No such 

payments were made by the husband. This Court noted 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. "This Court will not 

allow the husband to avoid paying interest merely by arguing 

that his wife did not do enough to secure it." Knudson, 622 

P.2d at 1027, 38 St.Rep. at 157. We affirmed the lower 

court's award of interest on the outstanding obligations. 

Interest accrued from the payment due dates specified in the 

original decree. 

In the present case and in accord with Knudson, we hold 

that the same principle applies where a decreed 1-ump sum cash 

payment is past due. 
Section 25-9-205(1), MCA provides that, unless otherwise 

specified in the contract, interest at the rate of 10% per 

annum is payable on judgments recovered in Montana courts. 

By incorporation into the decree, Husband's obligation to pay 

Wife $7,500 six months after entry of the final decree became 

part of the District Court's judgment. We hold that he is 

liable to the wife for interest accrued at the statutory rate 

from the date on which payment was due until the date on 

which payment was made. 

Husband alleges in his brief that he made a payment of 

$7,625.05 to the wife on May 6, 1983. Because the appellate 

record terminates on April 25, 1983, the date on which Notice 

of Appeal was filed, this Court cannot verify this assertion. 

For this reason, we remand the cause for the District Court 

to determine the date on which payment, if any, was made and 

to compute the interest due to Wife from Husband from May 16, 

1980 to the date on which the principal amount due was paid. 

Bolstad v. Bolstad (Mont. 19831, 660 P.2d 95, 40 St.Rep. 

344 is on all fours with this case regarding the issue of 

attorney fees. The Bolstad property settlement agreement 

stated: 

"Should any future action be commenced to enforce, 

modify or interpret any provision of this 

agreement, the Court shall award reasonable 

attorneys fees for the successful party as a cost 

of suit. " 

This language is indistinguishable from the attorney fees 

provision in the Gibson agreement. In Bolstad, this Court 

concluded that the wife was the successful party and 

"according to the agreement, she must be awarded reasonable 

attorney fees." 660 P.2d at 97, 40 St.Rep. at 347. 

We reverse the order of the District Court and remand 

the cause for determination of whether payment of the $7,500 
due from husband to wife has been made; for determination of 

interest owing on the $7,500 from May 16, 1980 to the date on 

which the principal amount was paid; and for determination of 

the reasonable attorney fees to be awarde 

We concur: