NO. 88-588 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN RE THE MARRIAGE OF 

PATTI JEAN ROBERTSON, 

Petitioner and Appellant, 

and 

RICK LEE ROBERTSON, 

Respondent and Respondent. 

APPEAL FROM: ~istrict Court of the Eighth ~udicial ~istrict, 

In and for the County of Cascade, 

The Honorable John McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Cameron Ferguson; ~artelius, Ferguson & Baker, Great 

Falls, Montana 

For R&spondent : 

ii .,' Barbara Bell; Bell & Marra, Great Falls, Montana , -: 

1-i i 

submitted on ~riefs: Feb. 23, 1989 

Decided: May 18, 1989 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

This is an appeal from an order of the District Court of 

the Eighth Judicial District, Cascade County, which modified 

the decree of dissolution relating to maintenance for 

appellant. We reverse and remand. 

The principal issue raised by Patti Jean is whether a 

district court may modify maintenance provisions for a wife, 

where the district court has approved and incorporated in the 

decree a property settlement agreement presented by the 

parties. We hold here that the District Court has no such 

power and so reverse. The specific provisions of the 

property settlement agreement here are important to our 

holding. 

Patti Jean Robertson, appellant, and Rick Lee Robertson 

were married on June 24, 1983, in Great Falls. On April 28, 

1985, their only child, a son was born. A petition for 

dissolution was filed by appellant on ~pril 10, 1986. A 

decree of dissolution of marriage was granted on December 18, 

1986 on the grounds that the marriage was irretrievably 

broken and that there was serious marital discord which 

adversely affected the attitudes of both parties. A property 

settlement, executed on September 19, 1986 was approved and 

incorporated into the decree. Although the parties agreed to 

joint custody of their child, the mother had physical custody 

and primary care of the child. The father had rights to 

visitation which he had the option of exercising. 

The decree provided for the support and maintenance of 

the child as follows: 

4. SUPPORT: Wife contemplates that for the next 

four years she will be attending the University of 

Montana in Missoula, Montana. With the college 
education and degree, Wife contemplates that she 

will then be able to obtain a much higher paying 

job then [sic] she could obtain at the current 

time. Husband agrees to pay wife $500 per month 

for the next four years while she is attending 

school plus an additional period of six months 

following her graduation at the end of the fourth 

school year to allow her time to find good 

employment after graduating and set up a household. 

in the location where she will be working. $250 

per month of this $500 per month shall be spousal 

maintenance. The other $250 per month shall be 

child support. At the end of six months after Wife 

graduates, husband shall be required to pay $250 

per month as child support. There shall be no 

further spousal maintenance obligation . . . . 

The parties are agreed that there are no issues relating 

to the right of the spouse to the child support payments set 

forth in the property settlement agreement. 

The decree additionally contains the following 

provisions: 

5. PROPERTY DIVISION: Husband shall be able to 

retain all rights which he has in the retirement 

account and profit sharing account and other forms 

of investment. [The value of the profit sharing 

plan at the time of the divorce was $20,106.00. 

The value of the retirement plan was $1,716.00.1 

Husband agrees to pay wife the sum of $2,000 per 

year for each of the next four years to assist wife 

in her tuition, books and other school expenses. 

This sum can be paid quarterly. Payment for the 

first quarter is due September 15, 1986. 

The parties have offered their house in Great 

Falls for sale. Out of the net sales proceeds, 

Husband shall be entitled to pay his parents the 

remaining sum due on the loan which the parties 

borrowed for part of the down payment. This sum, 

however, may not exceed the sum of $2,000. Husband 

may also reimburse himself for the amount of 

attorney fees which he has paid Wife's attorney 

under the provision of this agreement labeled 

attorney fees [$850.00] . The remaining balance 

shall be equally split between the parties. 
8. MODIFICATION OF AGREEMENT: Husband and Wife 

agree that except as to provisions involving child 

custody, support and visitation this Agreement may 

not be modified by any subsequent Court order 

following the divorce, except on express written 

acknowledged consent of the parties. 

9. WAIVER OF PROPERTY RIGHTS: All property 

received and retained by the parties pursuant 

hereto shall be the separate property of the 

respective parties, free and clear of any right, 

interest or claim of the other party, and each 

shall have a right to deal with and dispose of his 

or her separate property, as fully and effectively 

as if the parties had never been married. 

10. MUTUAL RELEASE: Subject to the provisions of 

this Agreement, each party by this Agreement for 

himself or herself, his or her heirs, legal 

representatives, executors, administrators, and 

assigns, releases and discharges the other of and 

from all causes of action, claims, rights or 

demands, whatsoever which either of the parties 

ever had or now has against the other. 

The parties also agreed that: 

In the event any party breaches the terms of this 

agreement in the future, the prevailing party in 

any court proceeding shall be awarded his or her 

attorney fees from the other party. 

On November 2, 1987, the husband petitioned the court to 

modify the spousal maintenance provisions set out above. On 

January 27, 1988, a hearing was held on that motion and on 

October 11, 1988, the ~istrict Court issued an order 

modifying the Decree of iss solution. This order deprived the 

mother of all spousal maintenance and the $2,000 .OO per year 

for her tuition and other college expenditures. The mother 

appeals that order. 
Modification of Court Decree 

Rick Robertson contends that the payments to patti 

Robertson constitute maintenance and not a property 

settlement, and that, therefore, the court should modify the 

agreement because it was unconscionable. The statute 

governing this premise is 5 40-4-208, MCA (1987). 

Modification and termination of provisions for .- maintenance, support, and property disposition. 

(1) Except as otherwise provided in 40-4-201(6), a 

decree may be modified by a court as to 

installments accruing subsequent to actual notice 

to the parties of the motion for modification. 

(2) . . . (b) Whenever the decree proposed for 

modification contains provisions relating to 

maintenance or support, modification under 

subsection (1) may only be made: 

(i) upon a showing of changed circumstances so 

substantial and continuing as to make the terms 

unconscionable; 

However, 5 40-4-201(6), MCA (1987), as referred to in the 

above statute directs us that 

Except for terms concerning the support, custody, 

or visitation of children, the decree may expressly 

reclude or limit modification of terms set forth 

:n the dTcree if the separation agreement so 

provides. (~mphasis added.) 

Under the statutes, the ~istrict Court does have the 

power to reopen a prior decree on the grounds of 

unconscionability if the support at issue is child support, 

custody, or maintenance that is not integrated with a 

property settlement. 

The property disposition provisions of a 

dissolution decree may only be modified where the 

parties give their written consent or where the 

agreement is subject to rescission or modification 

under the general law governing all contracts. 
In re Marriage of Richardson (1985), 214 Mont. 353, 693 P.2d 

524. 

patti Robertson entered into a property settlement and 

gave up the right to any future support beyond four years of 

college and the six months thereafter. She relinquished 

claims against Rick Robertson's retirement, savings and 

profit sharing accounts acquired during the marriage. These 

accounts were subject to discovery at the time of the 

dissolution and patti Robertson had the right to implement 

full discovery procedures. On December 31, 1986, those 

accounts showed the following balances: Employee Stock 

Ownership Plan $20,106.00 and Carpenter's Retirement 

$1,716.00. Patti gave up that right her claim to those funds 

as consideration for the exchange promise from Rick Robertson 

that he would pay her tuition of $2,000.00 per year ($167.00 

paid monthly) and payments of $250.00 per month in lieu of 

that property. 

The couple had agreed that ~ick would sell the family 

home in which they were living and from the proceeds of that 

sale he would repay patti Robertson's attorney fees of 

$870.00. They were to have split the remainder of any 

proceeds after all expenses were paid. After the dissolution 

was final, Rick moved out of the home which they purchased 

for $54,000.00. patti had moved out before the dissolution. 

In its vacant state it sold for $47,000.00. ~ick did not 

divide the proceeds with patti quite as he agreed. He 

himself received "$3,000.00 or so" from the sale, paid the 

$870.00 attorney fees and gave Patti $1,000.00. 

It is clear to this Court that the wife's monthly 

payments were an inseverable part of a property settlement 

arrangement. The obligation was undertaken by the husband in 

exchange for the wife's forbearance in regard to the property 

of the marital estate. This Court in Washington v. 
Washington (1973), 162 Mont. 349, 356, 512 P.2d 1300, adopted 

the rule that 

. . . if support provisions have been made an 

inseverable part of the agreement between husband 

and wife to divide their property, and the court in 

the divorce action approves the agreement, the 

provisions of such agreement cannot thereafter be 

modified without the consent of both of the 

contracting parties. 

It is obvious here as it was in washington, 162 Mont. at 

354, 512 P.2d at 1303, that one cannot sever the maintenance 

provision from the property settlement agreement between the 

parties without destroying the contract. 

We hold that the contractual property agreement was not 

subject to modification and the ~istrict Court erred in so 

modifying. 

Timeliness of Appeal 

The husband contends that the judge's oral comments made 

during the hearing of January 27, 1988 constituted the entry 

of final judgment. Husband's counsel argues that there was 

no doubt what the court ordered and that the husband relied 

on that order and stopped paying maintenance at that time. 

The written order of the court was issued October 11, 1988. 

patti appealed shortly thereafter. Husband argues that patti 

should have appealed within 30 days of the January hearing. 

Pursuant to Rule 77 (d) , M.R.Civ.P., notice of entry of 

judgment must be served by the prevailing party upon all 

parties who have made an appearance in the cause. ank kin son 

v. Picotte (Mont. 1988), 766 P.2d 242, 45 St.Rep. 2259. It 

is the filing of the notice of entry of judgment that begins 

the running of the time limits for filing a notice of appeal. 

Hankinson, supra; h orris on v. ~igbee (1983), 204 Mont. 501, 

668 P.2d 1029. If no notice of entry of judgment has been 

served on the losing party, the right to appeal has not 
expired. Haywood v. Sedillo (1975)' 167 Mont. 101, 535 P.2d 

1014. Unless post-trial motions are made by a party under 

Rule 52 or 59, I4.R.Civ.P. the appealing party is not required 

to adhere to the 30 day period for filing a notice of appeal 

until proper service of notice of entry of judgment is made. 

Hankinson, supra. pierce Packing Co. v. ~istrict Court 

(1978), 177 Mont. 50, 579 P.2d 760. 

The record before us indicates that no entry of judgment 

was served by the prevailing party as required under Rule 77. 

since it is necessary for this step to be taken before the 

time limit for the appeal begins to run, the appeal was 

timely. The time limitations had not yet begun to run. 

Moot Issue 

The next issue raised is whether, as the District Court 

found, there was a change in circumstances so substantial and 

continuing as to make the original custody and property 

settlement agreement spousal maintenance provisions 

unconscionable. 

Because we hold that the decree in this case cannot be 

modified as above stated, this issue is moot. 

Attorney Fees 

The property settlement agreement incorporated in the 

decree provides for attorney fees to the prevailing party 

when any party breaches the terms of the property settlement 

agreement. Wife is entitled to attorney fees here and in the 

District Court. 

The order of the District Court is reversed and the 

original decree is reinstated. Attorqey fees on remand to 

1 the wife as the prevailing party. , (-- ', ' , ": . I-IL~ + c-- .L~ /LC/ 

Justice /I 

We Concur: