No. 13891 

IN THE SUPREME COURT OF TEE STATE OF MONTANA 

1978 

IN XE THE MARRIAGE OF 

FLORENCE A. REILLY, 

Petitioner and Respondent, 

-vsRUDDY RF-YLJER REILLY, 

Respondent and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Respondent : 

Church, Harris, Johnson & Williams, Great Falls, 

Montana 

Cresap E. JilcCracken argued, Great Falls, Montana 

For Appellant: 

Marra, Wenz, Iwen and Johnson, Great Falls, Montana 

David Hopkins argued, Great Falls, PYlontana 

Submitted: January 18, 1978 

jpD Filed : - 

Decided: fpf: 1 5 1978 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from the judgment entered by the 

District Court, Cascade County. The court dissolved the marriage 

of the parties, awarded custody of the minor child to the wife, 

required the husband to pay child support of $100 per month 

plus all medical expenses incurred on behalf of the child, required the husband to pay the wife's attorney fees, awarded 

the wife her separately owned property, and awarded the Cascade 

residence to the husband. 

The parties to this appeal were first married in 1955. 

Two children resulted from this marriage. During this marriage, 

the parties purchased a house and lot situated in Cascade, Montana, as joint owners. On March 25, 1971, the first marriage 

was terminated by a decree of divorce. On or about March 1, 

1971, the parties entered into a property settlement agreement. 

Pursuant to the terms of the agreement, the wife relinquished: 

"111. That the Plaintiff relinquishes all 

right to title or equity in the land, residence, improvements, drapes, beds, stove, 

washer, dryer & refrigerator situate in the 

County of Cascade, State of Montana, at 

Wellington Tracts, Lot One South, Cascade, 

Montana. " 

The husband in turn agreed: 

"11. That the Defendant shall pay to the 

Plaintiff the sum of not less than Two 

Hundred Dollars ($200.00) per month as 

alimony and for the care, support, and 

maintenance and education of said minor 

children in addition to any reasonable 

expenses incurred on behalf of said minor 

children for medical, hospital, dental 

care and optical." (Emphasis added.) 

After the property settlement was executed, the wife 

with her two minor daughters took up residence in Michigan. 

The husband in the meantime failed to stay current with his 

$200 per month alimony/support obligation. On October 18, 1972, 

/an order 

for support under the Uniform Reciprocal Enforcement of Support 
Act was settled. According to this order, it was stipulated 

that the husband was in arrears to the wife from June 15, 1971. 

The husband's payments were reduced to $50 per child plus all 

reasonable medical costs incurred by the minor children. 

The parties married for the second time in June, 1975. 

After remarriage, the parties and their two children again resided in their former home at Cascade, Montana. The wife subsequently found employment. The income derived from this employment was expended on necessities for her and her family. 

The second marriage was terminated in June, 1977. During trial for the second divorce, the attorney for defendant 

objected to any evidence concerning the obligations of the first 

divorce decree. The wife had attempted to amend the pleadings 

to include rescission of the 1971 property settlement, but this 

attempted amending was denied by the District Court. Following 

discussion on the admissibility of this evidence, the trial 

judye allowed the wife to proceed with the evidence, but reserved 

the right to rule on the admissibility after presentation of 

evidence. At the conclusion of the wife's presentation, the 

trial judge ruled the evidence concerning the obligations of the 

1971 divorce decree not admissible. 

The trial judge's findings, conclusions and decree were 

entered on June 6, 1977. From this judgment, the wife appeals. 

The wife raises four issues for review: 

1. Was there error when the wife was not granted an 

interest in the family residence? 

2. Was the evidence concerning the obligations of the 

1971 divorce decree admissible? 

3. Was the child support award proper in light of the 

financial resources of each party? 

4. Was the sum of $500 a proper award for attorney fees? 
The husband raises one issue on cross-appeal: Are the 

monetary obligations under a prior property agreement and divorce 

decree extinguished by the remarriage of the parties? 

Issue 1. The wife contends she is entitled to an 

interest in the Cascade residence. The parties were married 

on two separate occasions for a period in excess of 17 years. 

During this time, the only valuable asset accumulated by the 

parties was the Cascade residence. From her interest in this 

residence, sufficient funds could be realized to independently 

support herself and remaining minor daughter. 

This issue requires review of the District Court's action 

and a determination whether the District Court abused its discretion. To facilitate this review, standards set forth under Montana's version of the Uniform Marriage and Divorce Act (U.M.D.A.) 

are applicable. Section 48-321(1), R.C.M. 1947, vests discretion 

in the District Court to I' * * * apportion between the parties 

the property and assets belonging to either or both * * *." The 

Court in Downs v. Downs, (1976), Mont . , 551 P.2d 1025, 

1026, 33 St.Rep. 576, held District Courts have the power to 

divide property on an equitable basis regardless of the fact 

that title to the property is vested in only one of the parties. 

Additionally, the Court in Cook v. Cook, (1972), 159 Mont. 98, 

104, 495 P.2d 591, established the principal that in equitably 

dividing the property, " * * * each case must be looked at by 

the trial court individually with an eye to its unique circum- 

/' 

stances. " Recently in"-3d v. 3ohlkrud , ,(1977), Mont . 

, 572 P.2d 902, 34 St.Rep. 1417, this Court clearly set 

forth at pp. 1421, 1422 the duty of the District Court in equitably distributing the property on dissolution of the marriage: 

" * * * it is the first duty of the District 

Court to equitably distribute the marital 

property. * * *" 
"The distribution or division of property 

acquired during marriage by the team effort 

of the marital partners, is, strictly speaking not alimony. * * * Where property is 

acquired during marraige by the joint 

efforts of the parties, it should be divided 

between the spouses according to what is just 

and reasonable." 34 St.Rep. 1422, quoting 

from Colley v. Colley (Ky. 1970) , 460 S.W. 2d 

821, 826. 

In Johnsrud this Court could not determine from the 

findings and record that the case was properly tried and considered under the provisions of the U.M.D.A. The case was 

remanded for a redetermination of the disposition of the parties' 

marital estate. The District Court was additionally instructed 

to make specific findings of fact on each element delineated 

in section 48-321, R.C.M. 1947. We reach the same conclusion 

in the case at hand. 

First, the District Court's findings and conclusions 

refer to the parties' 1971 property agreement. By virtue of 

this agreement, the District Court recognized a contribution by 

the husband to the first marriage. Although the District Court 

recognized the husband's contribution according to this agreement, no findings or record exists demonstrating a consideration 

of the wife's contribution by virtue of this same agreement. 

For this reason, we find the District Court abused its discretion in not complying with section 48-321. 

The agreement and facts of this case imply that the 

wife had some property interest in the Cascade residenebefore 

the 1971 divorce. At that time, the parties had been married 

for 15 years and had lived in the Cascade residence for over 

two years. According to the agreement, the wife was to receive 

$200 per month as alimony and for the care, support, maintenance 

and education of the two minor daughters. In consideration for 

this $200 per'month, the wife relinquished to the husband all 
right to title or equity in the land and residence at Cascade. 

The husband additionally agreed to assume all debts, obligations 

and financial responsibilities incurred for or on behalf of the 

family. 

Several pre-U.M.D.A. cases wherein the issue of alimony/ 

property settlement was raised add clarity to the relevance of 

the 1971 property agreement. In Washington v. Washington, (1973), 

162 Mont. 349, 354, 512 P.2d 1300, the wife entered into a property settlement. As consideration for "alimony" payments of 

$750 per month for nine years, the wife gave up the right to any 

future support, and relinquished claims against property owned 

by the husband. The Court held that the agreement was fully 

supported by consideration from the wife and stated: 

"In the property settlement agreement, the 

payments to the wife for nine years were 

labeled as 'alimony1, but, as is apparent 

from the agreement the payments were not in 

fact alimony per se, and the use of the term 

'alimony' was onlya label." 

In the case at hand, the wife relinquished to the husband all 

right to title or equity in the land and residence at Cascade. 

The wife gave up her right to the Cascade residence for the 

right to receive payments, labeled as alimony, from the husband. 

The alimony/property settlement distinction of Washington 

was reviewed by the Court in Movius v. Movius (19741, 163 Mont. 

463, 468, 517 P.2d 884. There, the Court was faced with the 

question 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. The wife 

sought an alimony award for her support. The divorce decree 

made such an award pursuant to the parties1 agreement. The 

alimony payments to the wife terminated absolutely in the event 

of her remarriage. No provision was made concerning future payments 
in the event of death of either the husband or wife. The alimony payments in Movius were clearly alimony and not payments 

in settlement of property rights. 

The principles and rationale found in Washington 

were reaffirmed, though an opposite conclusion was reached due 

to the facts of Movius. In Movius, the wife assumed no liability 

for any pre-existing indebtedness. The wife also did not give 

up anything in the way of support and maintenance in consideration of receiving a more favorable division of property acquired 

during the marriage. 

The case at hand is distinguishable from Movius. Here, 

the wife gave up her right to the property as consideration for 

the payments. 

The distinction between alimony and property settlement 

was further clarified by the Court in Jones v. Flasted, (1976), 

169 Mont. 60, 544 P.2d 1231. There, the Court reviewed whether 

the agreement between the parties passed permanent property 

rights to the ex-wife or gave the ex-wife only alimony rights 

terminating upon her death. The Court held the agreement did 

not transfer property rights. It was simply a contract to provide support for the ex-wife for 20 years if she should live 

that long. In reaching its decision, the Court stated at pp. 65-66. 

"There is a distinction between a property 

settlement on the one hand, and a contract to 

pay stated sums periodically in lieu of alimony 

on the other hand. This Court stated in Stefonick 

v. Stefonick, 118 Mont. 486, 501, 167 P.2d 848, 855: 

"'It is well settled that in this jurisdiction 

alimony is in no way a property settlement, but 

is the provision made for the support of the 

wife. * * *' 

"On the other hand, a property settlement 

settles property rights and may or may not 

mention the additional item of alimony. In 

24 Am.Jur.2df Divorce and Separation, 5883, 

p. 1003, it is stated: 
11 1 * * * Comonly, such a settlement (1) 

determines the rights of the parties in 

jointly owned property and states the disposition to be made of it; (2) settles all 

claims of each spouse in the property of the 

other and claims of each spouse to title to 

property held in the name of the other; (3) 

mutually releases all past and present claims 

except as established by the agreement; (4) 

waives and releases all future rights as 

spouse in the property of each other; (5) 

surrenders the rights of each on the death 

of the other, including rights of inheritance, 

homestead, dower, and the right to administer 

the estate of the other and to have exemptions 

and allowances from the estate; and (6) agrees 

that each will execute all documents necessary 

or desirable to carry out the purposes of the 

agreement.'" 

Here, the elements commonly found in a property settlement are 

present. 

Finally, in Englund v. Englund, (1976), 169 Mont. 418, 

421, 547 P.2d 841, this Court held it was obvious that the 

monthly payments to the wife were intended to be part of the 

property settlement and became mistakenly labeled as alimony. 

In that case, the wife had worked for most of the marital years 

in the business office of the husband's plumbing operation and 

helped in the accumulation of considerable property. Following 

divorce, the court ordered a property division consisting of 

four installment lump sum payments of $2,500 each over a two 

year period by the husband, with corresponding real property 

conveyances from the wife. In addition, the court ordered the 

husband to pay $400 per month alimony. On appeal, these monthly 

payments were found not to be alimony, but instead part of the 

property settlement. 

In the present case, the 1971 property agreement mistakenly labeled the $200 per month payments as "alimony" and child 

support. The District Court in 1977 should have interpreted the 

$200 per month payments as incorporating a property settlement and 

child support. Thus, in 1971, the wife received a property 
settlement from the assets of the marital estate. This property 

settlement produced for the wife a vested right in the $200 per 

month payment. Resultantly, in 1975 the wife entered the second 

marriage and contributed her vested property interest to the 

marital relationship. 

Upon dissolution of the parties1 second marriage, the 

District Court was required to consider the contributions of 

both parties and reach an equitable property distribution. As 

can be seen, the wife brought to the second marriage her vested 

interest from the 1971 property agreement. This contribution 

merited consideration. Since this Court cannot determine from 

the findings and record that the District Court properly tried 

and considered the contributions under the provisions of the 

U.M.D.A., we remand for a redetermination of the disposition of 

the parties1 marital estate. Additionally, the District Court 

is instructed to make specific findings of fact on each element 

delineated in section 48-321, R.C.M. 1947. 

Secondly, this Court is also unable to determine if the 

District Court considered the wife's contribution to the marital 

estate during the life of the second marriage. Cases decided 

following the enactment of the U.M.D.A. in Montana state that as 

a housewife, the wife acquired a vested interes-t in the property 

accumulated by the parties during the marriage. -JehssuL~- 

J&msd, supra; Biegalke v. Biegalke, (1977), Mont . I 

564 P.2d 987, 34 St.Rep. 401; Eschenburg v. Eschenburg, (1976), 

Mont . , 557 P.2d 1014, 33 St.Rep. 1198; Downs v. Downs, 

supra. The wife in the present case lived in the family residence 

from 1975 to 1977. During this time the wife's contributions as 

a housewife and mother to the parties' two daughters though 

"differed in kind, they were of equal weight to the financial 

contributions of defendant [the husband]." Eschenburg, supra at 
Issue 2. Given this Court's resolution of Issue 1, a 

discussion of Issue 2 deems the evidence admissible. 

Issue 3. Evidence was presented by both parties as to 

the financial resources of each party. The record reveals that 

the testimony presented by the husband and wife conflicted as 

to the total expendible income of each party. The record also 

reveals that both parties had the opportunity to cross-examine 

and rebut any or all offered testimony. The District Court is 

in the best position to judge the weight and credibility of the 

witnesses, especially where there is a conflict of testimony. _I , 

Easton v. Easton, (d94)', Mont . , 574 P.2d 989, 35 St. 

Rep. 123, 127. The wife had the burden to overcome the presumption of correctness of the District Court's decision. Unless 

there is a clear preponderance of evidence against the findings 

of the District Court, this Court will not reverse. Crncevich v. 

Georgetown Recreation Corp., (1975), 168 Mont. 113, 120, 541 

P.2d 56. The wife failed to produce a preponderance of evidence 

to support this issue. 

Issue 4. The fourth issue raised on appeal concerns the 

District Court's award of attorney fees. During trial, the 

attorney for the wife presented evidence showing he had spent 

34-1/2 hours to date, in the prosecution of the divorce action 

and that his billing rate was $30 per hour. The attorney's 

exhibit containing time slips kept on the case was admitted into 

the record. Additionally, counsel for the husband stipulated 

that the attorney for the wife spent 34-1/2 hours on the case 

and that $30 was a reasonable rate if, in this case, it was 

appropriate that an attorney fee be awarded. 

The District Court granted attorney fees in the amount of 

$500. Impliedly, the District Court ruled attorney fees were 

appropriate in this case. Section 48-327, R.C.M. 1947, states 

the court may order a party to pay a reasonable amount for attorney 

fees. 

- 10 - 
In the present case, the District Court accepted a stipulation that 34-1/2 hours had been spent in prosecuting the 

divorce action and that $30 per hour was a reasonable rate if 

attorney fees were appropriate. No evidence exists contrary 

to the stipulation as to a reasonable rate. Since the District 

Court ruled attorney fees were appropriate in this case, this 

Court orders the fees to be calculated according to the reasonable rate agreed upon by the attorneys. 

The husband's cross-appeal raises the common-law theory 

that an indebtedness between a husband and wife is extinguished 

by the marriage. After a review of the husband's cited authority, 

this Court finds the majority view, rejecting the common-law 

approach, more persuasive. 

While the husband cited 41 Am Jur 2d, Husband & Wife, 

521, p. 34, for support, this Court notes 522, entitled "Married 

Women's Act", which provides: 

"The cases are not in accord on the effect of 

Married Women's Acts on the common-law rule that 

marriage extinguishes antenuptial obligations, 

not in contemplation of marriage, between the 

spouses. One view is that, under such acts, 

securing to a wife her separate estate, marriage 

does not extinguish such antenuptial debts, and 

does not extinguish contracts between them, at 

least not those relating to property, though it 

does terminate contracts for such services of 

the wife as the marriage obligates her to perform. * * *" 

As additional support for the husband's proposition 

45 ALR2d, Marriage of Debtor & Creditor, p. 718 was cited. 

Again a review of this authority discloses the majority view 

differs. Reference is made to 53, p. 724, which provides: 

"Under the married women's acts of a number of 

states, the common-law theory as to the unity 

of the spouses has been abrogated, with the 

result that marriage between the parties to a 

contractual debt no longer extinguishes the 

obligation." 

The preceding authority discloses that the states of 

Arkansas, California, Illinois, Maine, Maryland, Massachusetts, 
Minnesota, New York, Ohio and Vermont recognize the majority 

view that the Married Women's Acts have abrogated the rule 

that contractual obligations are extinguished by marriage. 

Florida has also adopted the view that debts survive the 

marriage. Pinkas v. Fiveash (Fla.App. 1961), 126 So.2d 910. 

Montana's "Married Women's Act" comences at section 

36-101, R.C.M. 1947. In State Farm Mutual v. Leary, (1975), 168 

Mont. 482, 486, 544 P.2d 444, this Court, in quoting from Dutton 

v. Hightower and Lubrecht Construction Co., 214 F.Supp. 298, 300, 

stated: 

"' * * * [these sections] are procedural and 

create no new rights, but only remove the common 

law disability of married women to enforce their 

rights otherwise created and existing.'" 

While State Farm Mutual involved the question of inter-family 

tort immunity doctrine as applied in Montana the abrogation of 

the common-law disability was clear. Montana, consequently, 

adheres to the majority view and rejects the husband's contention. 

For the reasons cited, this case is remanded to the 

District Court for redetermination of the property distribution 

and attorney fees. 

We concur: 1 I 

Justice 

Justices