NO. 83-225 INTHE SUPRET4E COURT OF THE STATE OF ?I!ONT,IZNA 1983

IN RE THE MARRIAGE OF PATRICIA ANN GIBSON, Petitioner andAppellant, and HARLEY GIBSON, Respondent and Respondent.

APPEAL FRON: District Court of the Fourth Judicial District, Inand fortheCounty of Yissoula, The HonorableJohn S. Henson, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: 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: 

### NUVj

# -lggj

--- ClerkMr. 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 DistrictCourt. The following issuesare 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 toWife? 

### 4. Did the District Court abuse its discretion by failing to award attorney fees to theprevailing party in the enforcementaction? The parties chose to dispose of their marital property by executing a property settlement agreement, which they entered into onNovember 15, 1979, was approved by the court, andwas 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 FIVEHUNDRED 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 realproperty owned by the parties as joint tenants at that time. Nothing in theagreementor 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 furtherprovides that: "Shouldany 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 successfulparty." (emphasis added) On February 14, 1983,Wife filed a Motion for Order to Show Cause why Husband shoul-dnot 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 hearingwas conductedApril 

### 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 landwas 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 timelypayment 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 towhen shewould 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 tome so that theywill take themortgage 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 $7,500obligationwould 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 $7,500was due to her sixmonths from the time of thedivorce,i.e. onMay 16, 1980. "Q. 

### Did you at any point agree to wait until the landwas sold? "A. No, Ross kept telling me, 'You will get your money when the land sells,

### ' but I said, 'Iwantmy money as soonaspossible.'" On cross-examination, theWife was asked whether shedemanded 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 againstHusband earlier. The District Court's Findings of Fact, Conclusions of Law 

### and Order of March 7, 1983 provide in pertinent part: "Theparties entered into a verbal agreement which was not specifically set forth in the Marital and Property Settlement Agreement, that the balance of the TenThousand Dollar ($10,000.00)amount for thewife's interest in theproperty and for maintenance would be paid upon sale of the specific real property described above. The Petitioneragreed to accept such payment for her interest in the land and formaintenance." Finding of FactNo. 4. "Despite the fact that the Marital and Property Settlement Agreementprovided that the sumof 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 FactNo. 8. "Both parties are financially able topay their own costs and expenses in this matter." Finding of FactNo. 10. "Respondent shall have until May lst, 1983 to pay to the Petitioner the full sumdue plus interestas 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 LawNo. 5. The court ordered Husband to pay Wife $7,500, plus interest accrued at the statutory rate fromMarch 7, 1983. The court further ordered that if payment were not made on or before May 1, 1983,the courtwould order theproperty sold and Wife might be entitled to a deficiency judgment.

Modification of a provision formaintenance or property disposition is governed by section 40-4-208, MCA. ~lthough the property settlement agreementprovided that $10,000would be paid by Husband "forWife's interest in the property and for maintenance," both parties treated this as a property dispositionprovision on appeal. Section 40-4-208(3), MCA provides: "(3) Theprovisions as toproperty dispositionmay not be revoked or modified by a court, except: (a) uponwritten consent of theparties; or (b) if the court finds the existence of conditions that justify the reopening of a judgmentunder the laws of this state."

### The District Courtmade 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 showcause 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 thatWife's signing of the deed was a condition required by the lender bank, not an agreementtopostpone the due date of theproperty settlement payment. Section 40-4-208(3), MCA specifies that a provision as toproperty dispositionmay notbe modified by a court unless the parties have consented inwriting to the modification or the court finds conditions that justify reopening the original decree. We hold that the District Court's modification of thisprovision of the parties' agreementwas

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 DistrictCourt's modification order. Wife contends that under both judgment and contract law, she is entitled tointerest from May 16, 1980, the date the payment was deemed dueby order of the court. Wife relies on Williamsv. Rudke (Mont. 1980), 606 P.2d 515, 37 St.Rep. 228. There,we held that when the marital dissolution decree is silentas to interest, such interest is automatically collectible by the judgment creditor spouse on past duepayments for supportormaintenance, the sameas 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 contraryprovision 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 interestmerely 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 originaldecree. In the present case and in accord with Knudson,we hold that the sameprinciple applieswhere a decreed 1-umpsum cash payment ispast 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 sixmonths after entry of the finaldecree became part of the District Court's judgment. We hold that he is liable to thewife for interest accrued at the statutory rate from the date on which payment was due until the date on which paymentwasmade. Husband alleges in his brief that he made a payment of $7,625.05 to the wife onMay 6,1983. Because the appellate record terminates onApril 25, 1983,the date onwhich Notice ofAppeal was filed,this Court cannotverify this assertion. For this reason,we remand the cause for the District Court to determine the date onwhich payment, if any,was made and to compute the interest due toWife from Husband fromMay 16, 1980 to the date on which the principal amount due was paid.

Bolstad v. Bolstad (Mont.19831,660P.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 successfulparty 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 $7,500due from husband towife has been made; for determination of interest owing on the $7,500 fromMay 16, 1980 to the date on which theprincipal amountwas paid; and for determination of the reasonable attorney fees tobe awarde

We concur: