No. 81-149 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

KAREN J. DELANEY, 

Plaintiff and Respondent, 

-vsROBERT L. DELANEY , 

Defendant and Appellant. 

Appeal from: District Court 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 Judicial District, to 

collect $15,000 from her former husband, Robert L. Delaney, 

in satisfaction of delinquent payments for support and 

maintenance for the years 1976, 1977 and 1978. A nonjury 

trial was held on August 14, 1980. On December 18, the 

District Court made and adopted findings of fact and conclusions 

of law, and on January 6, 1981, judgment was entered in 

favor of the wife in the amount of $15,000, together with 

interest. From that judgment, and from the order of January 

30 denying husband's motion to amend the findings of fact 

and conclusions of 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 finding was in error and affirm 

the judgment of 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 $5,000 per year for ten years, said 

payments to be made on November 1 of each year. 

After complying with 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, husband 
executed 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, dated April 27, 1978, was 

offered to the wife to cover the 1977 payment and the November 

1976 note but she did not accept it. 

The 1978 payment came due on November 1, and when it 

was not paid, Karen Delaney filed her complaint, dated 

November 21, 1978. 

Robert Delaney contends that certain sums paid in 

excess of the decree, amounting to $15,546.11, should be 

treated as advances on the annual $5,000 payments. These 

sums were part of a program begun in 1974 whereby the husband 

increased his support payments for the two children. Upon 

the submission of a budget, he made payments of $1,500 per 

quarter which were later reduced, as of March 2, 1975, to 

$1,050 per quarter, and then as of February 1977, changed to 

$1,000 per month. 

In accord with an oral understanding of the parties, 

husband also paid $5,415 from October 23, 1973 through 

August 27, 1974 for psychiatric care of the wife. 

In total, at the commencement of this action, husband 

was obligated by 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 responsible 
for the extra payments. 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), 170 Mont. 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 simply being made by Bob on his own 

initiative." 

Another letter from the husband himself, dated December 

2, 1974 (plaintiff's exhibit C), states that "this is merely 

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 

you will receive hereafter with the exception of the $5,000 

due yearly in November." Later he stated it "is in no way 

intended to breach or amend the original court decree. I 

exceed the decree only for my 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), - Illon t . - 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 findings of fact of the trial 

court unless they are clearly erroneous. Rule 52(a), M.R.Civ.P. 

Affirmed. 

Justice 
We Concur: