No. 81-149 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

KAREN J. DELANEY, Plaintiff and Respondent,

-vsROBERT L. DELANEY

## , Defendant and Appellant.

Appeal from: DistrictCourt of the Fourth Judicial District, In and for the County of Yissoula, The Honorable Jack L. Green, Judge presiding.
Counsel of Record: For A~pellant: Mulroney, Delaney 

### s Dalby, Missoula Montana
For Respondent: Leaphart Law Firm, Helena, Montana

Submitted on briefs: August 21, 1981 Decided: November 9, 1981

Filed:Mr. Justice John C. Sheehy delivered the Opinion of the Court. Respondent Karen J. Delaney brought this action in the Missoula County District Court, Fourth JudicialDistrict, to collect $15,000 from her former husband, Robert L. Delaney, in satisfaction of delinquentpayments for support and maintenance for the years 1976, 1977 and 1978. A nonjury trial was held onAugust 14, 1980. On December 18, the District Court made and adopted findingsof fact and conclusions of law,and on January 6, 1981, judgmentwas entered in favor of the wife in the amount of $15,000, togetherwith interest. From that judgment, and from the order of January 30 denying husband's motion to amend the findingsof fact and conclusionsof law, the husband now appeals. This Court is presented two questions for review: 1) Did the District Court err by finding that sums totaling $15,546.11 in excess of the decree of dissolution paid by the husband to the wife were gifts? 2) Did the District Court err by finding that the husband was not entitled to offset those sums against the $15,000 required by the decree? We find that neither findingwas in error and affirm the judgmentof the District Court. The parties were divorced on September 28, 1973. The marital and property settlement agreement,dated September 27,provided in addition to all other requirements, that the husband pay the wife $5,000per year for ten years, said payments to be made onNovember 1 of each year. After complyingwith these payments for the first three years,husband failed to make payments for the years 1976, 1977 and 1978. In lieu of the 1976 payment, husbandexecuted a promissory note in the amount of $5,000,payable
on or before March 31, 1977. That note was canceled by the District Court and made part of its judgment. Another note, in the amount of $10,000,datedApril 27, 1978, was offered to thewife to cover the 1977payment and the November 1976 note but she did not accept it. The 1978payment came due on November 1, and when it
was notpaid, Karen Delaney filed her complaint,dated November 21, 1978. Robert Delaney contends that certain sumspaid in
excess of the decree, amounting to $15,546.11, should be treated as advances on the annual $5,000payments. These sums were part of a program begun in 1974whereby the husband increased his supportpayments for the two children. Upon the submissionof a budget, he made payments of $1,500per quarter which were later reduced, as of March 2, 1975, to $1,050per quarter, and then as of February 1977, changed to $1,000per month. In accordwith an oral understanding of the parties, husband also paid $5,415 fromOctober 23, 1973 through August 27, 1974 for psychiatric care of thewife. In total, at the commencementof this action, husband
was obligatedby the decree to pay the wife $67,800. At that time, he had actually paid her $83,346.11, an excess of $15,546.11. The District Court found that the excess payments
were intended as gifts, and we agree. Husband relies on the statute defining gift, section 70-3-101,MCA,which states that the transfer must be made voluntarily. He contends that constant harassing,phone calls, and threats to withhold visitation rights were responsiblefor the extrapayments. These factors no doubt had an effect,but they do not overcome the substantial evidence that the payments were intended as gifts. As we stated in Myhre v. Myhre (1976),170Mont. 410, 416, 554 P.2d 276, 279, the true expert on donative intent is the donor. A letter to the wife from the husband's attorney,dated October 23, 1974 (plaintiff's exhibit E), states that "this $1500.00 payment is simplybeing made by Bob on his own initiative." Another letter from the husband himself, dated December 2, 1974 (plaintiff'sexhibit C), states that "this ismerely intended as a gift to the children." Another such letter from the same exhibit, dated January 30, 1977, says that "this will be the only payment youwill receivehereafter with the exception of the $5,000 due yearly inNovember." Later he stated it "is in no way intended to breach or amend the original court decree. I exceed the decree only formy children's benefit and will continue to pay a larger sum only in so far (sic)as I can reasonably afford to do so." These clearly demonstrate that the excess payments
were intended as gifts, and husband is not entitled to offset them against the amount owed under the decree of dissolution. See Hadford v. Hadford (1981), Illont

# . I - 

### - 633 P.2d 1181, 1186, 38 St.Rep. 1308, 1314-1315;Williams v. Budke (1980), Mont. 

## , 606 P.2d 515, 517, 37 St.Rep. 

### - 228, 230. We will not set aside the findingsof fact of the trial court unless they are clearly erroneous. Rule 52(a),M.R.Civ.P. Affirmed.

JusticeWe Concur: