No. 12225 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

ARTHUR J. MOVIUS, 

Plaintiff and Respondent, 

-vs - 

ALICE J. MOVIUS, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Alfred B. Coate, Judge presiding. 

Counsel of Record : 

For Appellant : 

Sandall, Moses and Cavan, Billings, Montana 

John J. Cavan, Jr. argued, Billings, Montana 

For Respondent : 

Michael J. Whalen argued, Billings, Montana 

-- - 

Submitted : November 29, 1973 

Decided : JRfi 1 0 1974 

Filed : aflf 0 1974 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

A former wife filed a contempt action against her divorced 

husband alleging failure on his part to make monthly alimony 

payments and provide security therefor pursuant to a written 

agreement between them which had been approved by the court 

and incorporated into the divorce decree. The divorced husband 

applied for a reduction of such monthly alimony payments based 

upon a change in circumstances since entry of the original decree. 

The district court of Yellowstone County, the Hon. Alfred B. 

Coate, district judge presiding without a jury, entered an order 

adjudicating the former husband not in contempt and reducing 

the monthly alimony payments from $500 to $100 effective from 

the date of filing of the petition for modification. Following 

denial of her motion for a new trial, motion to amend the judgment and exceptions to the findings of fact and conclusions of 

law, the former wife appeals. 

Appellant is Alice J. Movius, the former wife. Respondent 

is Arthur J. Movius, the divorced husband. They will hereafter 

be referred to as Alice and Arthur respectively. 

Alice and Arthur were married in 1956 and no children were 

born as issue of the marriage. For many years prior to this 

divorce, Arthur was a physician and partner in the ~illings Clinic 

in Billings, Montana and earned a substantial income from his 

profession. Both real estate and personal property were acquired 

during the course of this marriage. 

Various difficulties arose between them culminating in 

Arthur's filing of a divorce complaint against Alice on October 

14, 1966, in the district court of Yellowstone County. Alice 

answered his complaint and filed a cross-complaint seeking 

(1) a divorce, (2) alimony, (3) attorney's fees, and (4) costs. 

Before the matter was heard by the district court, Alice and 
Arthur, through their respective attorneys, negotiated a written 

agreement settling their property rights, support for Alice, 

and all other claims of each against the other. 

The salient features of this agreement were: 

(1) An agreement to live separate and apart from each 

other. 

(2) An agreement by each to release the other from any 

claims or obligations except as provided in the agreement and 

making each party thereafter liable for his or her own personal 

and separate obligations. 

(3) A provision that the agreement not become effective 

until a valid decree of divorce was entered in which the agreement was approved and ratified by the court and incorporated in 

the decree and "which decree shall contain no provision for the 

Husband to pay any alimony, support or maintenance except as 

herein provided in this agreement which shall be and constitute 

an integrated part of the said decree". 

(4) A provision for division of household finishings, 

yard equipment, tools and appliances. 

(5) An agreement by Arthur to pay Alice $500 per month 

for her support and maintenance until Arthur reaches age 65, 

then the sum shall be reduced to $300 per month until Arthur 

reaches age 70 when it shall terminate absolutely. The monthly 

payments would also terminate in the event of Alice's remarriage. 

Upon request of Alice, Arthur agreed to apply for disability 

insurance that would pay an amount equal to the payments for 

Alice's support and maintenance, with the premiums to be paid by 

Alice. Arthur agreed that upon termination of his association 

with the Billings Clinic to place $18,000 in trust as security 

for the monthly payments to Alice, ownership of said $18,000 trust 

fund to remain in Arthur. 
(6) An agreement by Arthur to pay Alice $1,000 

attorney's fees. 

(7) An agreement by Alice to quit claim her joint 

interest in the family house to Arthur, and Arthur's agreement 

to pay her $15,000 therefor. 

(8) An agreement by Arthur to assign an insurance policy 

to Alice and make her beneficial owner, with Alice paying the 

annual premiums. 

(9) An agreement by Arthur to contribute $2,500 toward 

the purchase of a car for Alice. 

(10) A provision that the agreement "shall be and operate 

as a complete property settlement between the parties and there 

is no other agreement between the parties except as herein specif ically set forth. " 

This agreement was dated June 2, 1967. A decree was 

entered by the district court on June 5 providing: (1) Alice 

was granted a divorce from Arthur; (2) the property settlement 

agreement was ratified, approved and adopted by the court, incorporated into the decree, and both parties were bound thereby. 

Arthur remarried shortly thereafter. His association 

with the Billings Clinic terminated June 30, 1967. 

On September 28, 1970, Alice instituted contempt proceedings against Arthur alleging his failure to make the payments 

required by the divorce decree and his failure to establish the 

$18,000 trust fund as security therefor. 

On February 24, 1971, Arthur applied for reduction of 

monthly support and maintenance payments from $500 to not more 

than $150. He alleged changed circumstances since entry of the 

decree involving a substantial reduction in income, deterioration 

of health and the ability of Alice to provide for her own support 

and maintenance. 
Both matters came on for a consolidated hearing before 

Judge Coate on March 26, 1971. Findings of fact and conclusions 

of law were entered on November 3 and an order or judgment was 

entered on November 9. The substance of the order or judgment 

was that Arthur was not guilty of contempt, that Arthur was 

obligated to pay Alice all accrued support money owed under the 

original decree to the date of Arthur's application for modification (February 24, 1971) and thereafter support money payments 

were reduced to $100 per month, 

Following denial of Alice's motion for new trial, motion 

to amend the judgment, and exceptions to the court's findings 

of fact and conclusions of law, Alice appealed from the judgment. 

The issues on appeal are twofold: 

(1) Is the original decree of the court ratifying, 

adopting and incorporating the property settlement agreement 

of the parties subject to subsequent modification by the court? 

(2) If so, did the district court commit error by 

modifying the accrued alimony payments retroactively? 

Directing our attention to the first issue, the underlying question is whether the alimony provision of the property 

settlement is integral and not severable from the rest of the 

agreement and as such not subject to subsequent modification by 

the court. This question was recently before this Court in 

Washington v. Washington, - Mont . , 512 P.2d 1300, 30 St. 

Rep. 674. There we held that the alimony provisions of that 

particular agreement were not in fact alimony payments at all, 

but instead were an integrated part of a property settlement 

which could not be severed therefrom without destroying the 

contract, and accordingly were not subject to subsequent modification by the court. 

We reaffirm the principles announced therein, the authorities 
cited in support, and the rationale applied to resolution of the 

question. Here, however, although the agreement bears some similarities to the agreement in Washington, its differences command an opposite result. In Washington the wife didn't seek 

alimony or support in the divorce action but both parties simply 

sought an equitable settlement of property rights; the agreement 

incorporated in the decree in Washington provided that the payments labeled as alimony continued if the wife remarried and 

become a charge against the husband's estate if he died prior to 

payment in full; the agreement provided that the wife would assume 

a pre-existing liability of $10,000 against some of the property. 

Here, unlike Washington, Alice sought an alimony award 

for her support and maintenance in her crosscLaim for divorce, 

and the divorce decree made such an award pursuant to the agreement of the parties. The alimony payments to Alice terminated 

absolutely in the event of her remarriage. The agreement here 

is silent on liability for future payments in the event of death 

of either Alice or Arthur. The alimony provisions here are clearly 

alimony and not payments in settlement of property rights. Here 

Alice assumed no liability for any pre-existing indebtedness nor 

is there any evidence indicating that she gave up anything in 

the way of support and maintenance in consideration of receiving 

a more favorable division of the property acquired during their 

marriage. 

In short, here there is no interrelationship between the 

alimony provisions and the property division that would destroy 

the rest of the contract if the amount of alimony payments were 

modified by the court. Absent such mutual interdependency, the 

alimony provisions of the agreement incorporated in the decree 

are not an integral part of the property settlement but are in 

all respects separable therefrom and subject to subsequent mod- 
ification by the court in its discretion on a proper showing 

of changed circumstances. This discretion of the district 

c0ur.t was properly ezrcised here as the evidence indicates a 

drastic change in financial circumstances of the husband and 

deterioration of the husband's health. 

The second issue is whether or not the reduction of 

alimony payments by the court can be made effective as of the 

date of Arthur's application for modification rather than the 

date of the court's order reducing the payments. Here there was 

approximately a nine-month interval between Arthur's application 

for reduction and the court's order therefor. The amount involved 

is about $3,600. 

This precise issue has not heretofore been ruled upon by 

this Court. The majority rule is that courts may cancel arrears 

of alimony, separate maintenance, or support which accrued after 

the filing of a motion for modification of the decree and prior 

to the entry of the order based upon such a request for relief. 

6 A.L.R.2d 1328 and cases cited therein; A.L.R.2d Later Case 

service, p. 845 and the following recent cases: Fioravanti v. 

Fioravanti, C.C.A., D.C., 231 F.2d 776; Goodman v. Goodman, 173 

Neb. 330, 113 N.W.2d 202. 

Montana cases considering the related problem of retroactive modification of decrees for past due alimony predating 

the application for modification are: Woehler v. Woehler, 107 

Mont. 69, 81 P.2d 344 (permitting such retroactive modification 

in a separate maintenance action under a statute providing for 

enforcement by orders which may be varied, altered or revoked 

by the court); Porter v. Porter, 155 Mont. 451, 473 P.2d 538 

(suggesting t.hat such retroactive modification in a divorce 

action is improper under statute permitting court to modify 

alimony orders). 
In our view the problem of retroactive modification 

in its broad sense is not presented by this case. Section 21- 

139, R.C.M. 1947 is sufficiently broad to permit the court to 

make an order modifying alimony payments effective as of the 

date of application therefor. The relief sought is based on 

changed conditions that exist at the date of filing the petition 

for modification, so no compelling reasons appear to us why a 

court, in its discretion, cannot award applicant relief from 

that date onward. 

The judgment of the district court is affirmed. 

Justice 

We concur: